Chapter 289
2009 -- S 0245 SUBSTITUTE B
Enacted 11/12/09
A N A C T
RELATING TO HEALTH AND SAFETY
Introduced By: Senator C Levesque
Date
Introduced: February 11, 2009
It is enacted by the
General Assembly as follows:
SECTION
1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is
hereby
amended by adding thereto
the following chapter:
CHAPTER
6.3
PREVENTION
AND SUPPRESSION OF CONTAGIOUS DISEASES - HIV/AIDS
23-6.3-1. Purpose.
-- The purpose of this chapter is to reduce vulnerability to
HIV/AIDS
transmission, protect persons who are infected with
HIV from discrimination, ensure informed
consent for testing, and to provide consistent terms
and standards within this title and as
applicable to chapters 11-34, 11-37, 21-28 and
40.1-24.
23-6.3-2.
Definitions. -- As used in this chapter the following words shall
have the
following meanings:
(1) "Agent"
means a person empowered by the patient to assert or waive the
confidentiality, or to disclose or consent to the
disclosure of confidential information, as
established by chapter 5-37.3 of the general laws of
"Confidentiality of Health Care Communications
and Information Act."
(2) "AIDS"
means the medical condition known as acquired immune deficiency
syndrome, caused by infection of an individual by the
human immunodeficiency virus (HIV).
(3) "Anonymous
HIV testing" means an HIV test that utilizes a laboratory generated code
based system, which does not require an individual's
name or other identifying information that
may reveal one's identity, including information
related to the individual's health insurance
policy, to be associated with the test.
(4)
"Antibody" means a protein produced by the body in response to
specific foreign
substances such as bacteria or viruses.
(5)
"Community-based organization" means an entity that has written
authorization from
the department for HIV counseling, testing and
referral services (HIV CTRS).
(6)
"Confidential HIV testing" means an HIV test that requires the
individual's name and
other identifying information including information
related to the individual's health insurance
policy, as appropriate.
(7)
"Consent" means an explicit exchange of information between a person
and a health
care provider or qualified professional HIV test
counselor through which an informed individual
can choose whether to undergo HIV testing or decline
to do so. Elements of consent shall include
providing each individual with verbal or written
information regarding an explanation of HIV
infection, a description of interventions that can
reduce HIV transmission, the meanings of
positive and negative test results, the voluntary
nature of the HIV testing, an opportunity to ask
questions and to decline testing.
(8) "Controlled
substance" means a drug, substance, or immediate precursor in schedules
I-V listed in the provisions of chapter 21-28
entitled, "Uniform Controlled Substances Act".
(9)
"Department" means the
(10) "Diagnosis
of AIDS" means the most current surveillance case definition for AIDS
published in the Centers for Disease Control &
Prevention (CDC).
(11) "Diagnosis
of HIV" means the most current surveillance case definition for HIV
infection published in the CDC's (MMWR).
(12)
"Director" means the director of the
(13) "ELISA
result" means enzyme-linked immunosorbent assay or
EIA (enzyme
immunoassay) which is a serologic technique used in
immunology to detect the presence of either
antibody or antigen.
(14) "Health
benefits" include accident and sickness, including disability or health
insurance, health benefit plans and/or policies,
hospital, health, or medical service plans, or any
health maintenance organization plan pursuant to title
27 or otherwise.
(15) "Health
care facility" means those facilities licensed by the department in
accordance with the provisions of chapter 23-17.
(16) "Health
care provider", as used herein, means a licensed physician, physician
assistant, certified nurse practitioner or midwife.
(17) "Health
care settings" means venues offering clinical STD services including, but
not limited to, hospitals, urgent care clinics, STD
clinics and other substance abuse treatment
facilities, mental health treatment facilities,
community health centers, primary care and OB/GYN
physician offices, and family planning providers.
(18) "HIV"
means the human immunodeficiency virus, the pathogenic organism
responsible for HIV infection and/or the acquired
immunodeficiency syndrome (AIDS) in
humans.
(19) "HIV CD4
T-lymphocyte test result" means the results of any currently medically
accepted and/or FDA approved test used to count CD4
T-lymphatic cells in the blood of an HIV-
infected person.
(20) "HIV
counseling" means an interactive process of communication between a person
and a health care provider or qualified professional
HIV test counselor during which there is an
assessment of the person's risks for HIV infection and
the provision of counseling to assist the
person with behavior changes that can reduce risks for
acquiring HIV infection.
(21) "HIV
screening" means the conduct of HIV testing among those who do not show
signs or symptoms of an HIV infection.
(22) "HIV
test" means any currently medically accepted and/or FDA approved test for
determining HIV infection in humans.
(23)
"Occupational health representative" means a person, within a health
care facility,
trained to respond to occupational, particularly blood
borne, exposures.
(24) "Opts
out" means that a person who has been notified that a voluntary HIV test
will
be performed, has elected to decline or defer testing.
Consent to HIV testing is inferred unless the
individual declines testing.
(25) "Perinatal case report for HIV" means the information
that is provided to the
department related to a child aged less than eighteen
(18) months born to an HIV-infected mother
and the child does not meet the criteria for HIV
infection or the criteria for "not infected" with
HIV as defined in the most current surveillance case
definition for HIV infection published by the
CDC.
(26)
"Person" means any individual, trust or estate, partnership,
corporation (including
associations, joint stock companies), limited
liability companies, state, or political subdivision or
instrumentality of a state.
(27) "Persons at
high risk for HIV infection" means persons defined as being high risk in
the CDC's most current recommendations for HIV testing
of adults, adolescents and pregnant
women in health care settings or through authority and
responsibilities conferred on the director
by law in protecting the public's health.
(28) "Polymerase
chain reaction (PCR) test" means a common laboratory method of
creating copies of specific fragments of DNA or RNA.
(29) "Qualified
professional HIV test counselor" means: (i) A
physician, physician
assistant, certified nurse practitioner, midwife, or
nurse licensed to practice in accordance with
applicable state law; (ii) A medical student who is
actively matriculating in a medical degree
program and who performs duties assigned to them by a
physician; or (iii) A person who has
completed an HIV counseling training program, in
accordance with regulations hereunder
promulgated.
(30) "Sexually
transmitted diseases (STD's)" means those diseases included in section 23-
11-1, as amended, entitled "Sexually Transmitted
Diseases", and any other sexually transmitted
disease that may be required to be reported by the
department.
23-6.3-3. HIV
screening and testing of adults, adolescents, and pregnant women. --
(a) This section shall pertain to patients in all
health care settings and HIV CTRS sites.
(b) HIV screening and
testing shall be based on the most current recommendations for
HIV counseling, testing and referral of adults,
adolescents and pregnant women issued by the
CDC. Provided, however, those guidelines shall be
interpreted by the department so as to best
serve the individuals and patients receiving HIV
testing, and shall in no event be interpreted or
implemented in a manner inconsistent with the minimum
informed consent standards and other
provisions and protections of state law and
regulations.
(c) All individuals
who desire anonymous HIV testing shall be referred to an HIV CTRS
site funded by the department that provides anonymous
HIV testing.
(d) All health care
settings and HIV CTRS sites shall develop protocols that include no
less than the following: assessment for individuals at
high risk for HIV infection; frequency of
HIV testing; communication of HIV test results; and
post-test linkages to needed care and support
services.
(e) Those adults,
adolescents and pregnant women who test positive for HIV infection
shall be given priority for outpatient substance abuse
treatment programs that are sponsored or
supported by the appropriate state agency responsible
for these services, and those who test
negative for HIV infection shall be referred to the
appropriate state agency responsible for these
services for earliest possible evaluation and
treatment.
(f) A positive test
result must be given in person. Persons testing positive for HIV must
also be provided with linkages and referrals to
HIV-related counseling, health care and support.
(g) All persons
tested under this section shall be informed of the results of the HIV test.
(h) Consent and
providing information for HIV testing:
(1) Except as
provided in section 23-6.3-4, HIV screening shall be voluntary, free from
coercion, incorporated into routine medical testing,
and undertaken only with the individual’s
knowledge and understanding that HIV testing will be
performed.
(2) No person shall
order the performance of an HIV test without first: (i)
Providing the
information and opportunity for discussion or
counseling set forth in this section; (ii) Informing
the patient that he or she has a right to decline
testing; and (iii) Obtaining the oral consent of the
patient to be tested or of a person authorized to
consent to health care for such individual. Said
consent and exchange of HIV information shall be
documented in the patient’s medical record.
(3) A physician or
health care provider may tailor HIV counseling to best meet the needs
of the individual to be tested. Decisions concerning
patient-specific tailoring and the extent of
pre-test counseling shall be made on a case-by-case
basis.
(4) In no event shall
a patient be tested for HIV pursuant to this section without first
being provided with verbal or written information that
includes the following:
(i)
An explanation of HIV infection;
(ii) A description of
interventions that can reduce HIV transmission;
(iii) The meanings of
positive and negative test results;
(iv) The possibility
that a recent infection may not be detected; and
(v) An opportunity to
ask questions and to decline testing.
(i)
For pregnant women:
(1) HIV screening
shall be incorporated as part of routine prenatal testing for all pregnant
women as early and often as appropriate during each
pregnancy after the patient has been notified
that voluntary testing, in accordance with the consent
and information requirements of subsection
(h), will be performed unless the patient opts out.
(2) Any woman with an
undocumented HIV test status in her record at the time of labor
and/or delivery shall be screened with an HIV test in
accordance with the consent and
information requirements of subsection (h), unless she
opts out.
(3) A newborn shall
be tested as soon as possible at delivery without the mother’s
consent if the mother’s HIV status is not documented,
provided that:
(i)
Reasonable efforts have been made to secure voluntary consent from the mother
to test
the newborn; and
(ii) A mother is
informed that HIV antibodies in the newborn indicate that the mother is
infected with HIV.
(j) The department
shall provide guidance and access to written information to be used
for the purposes of this section. This information
shall notify the patients about risk-reduction
strategies; the merits of repeat HIV and STD testing;
and the availability of counseling and HIV
prevention services. Informational materials shall be
easily understandable and made available in
Spanish and in other languages as appropriate to
assure that the information presented is in a
format that the individual can understand.
Interpreters and bilingual staff shall demonstrate
competency in providing language assistance to
patients with limited English proficiency. Family
or friends shall not be used as language interpreters.
(k) A distinction
shall be made between anonymous and confidential HIV testing. To
protect the anonymity of patients tested anonymously,
written consent shall not be offered as an
option to verbal informed consent in anonymous
testing.
(l) In accordance
with chapter 23-8, individuals under eighteen (18) years of age may
give legal consent for testing, examination, and/or
treatment for any reportable communicable
disease, including HIV.
(m) The department shall
initiate medical provider training sessions, develop
standardized materials to support more universal
testing, utilize community input to create
implementation plans, and evaluate the impact of this
section.
(n) No physician or
health care provider shall discriminate against a patient because he or
she is HIV positive or has declined to take an HIV
test.
23-6.3-4.
Exceptions to consent requirements. – (a) A health care provider may
test for
the presence of HIV without obtaining consent from the
individual to be tested under the
following conditions:
(1) When the
individual to be tested is under one year of age;
(2) When a child
between one and thirteen (13) years of age appears to be symptomatic
for HIV;
(3) When the
individual to be tested is a minor under the care and authority of the
department of children, youth and families, and the
director of that department certifies that an
HIV test is necessary to secure health or human
services for that individual;
(4) In a licensed
health care facility or health care setting, in the event that an
occupational health representative or physician,
registered nurse practitioner, physician assistant,
or nurse-midwife, not directly involved in the
exposure, determines that an employee or
emergency service worker, other than one in a
supervisory position to the person making the
determination, had a significant exposure to the blood
and/or body fluids of a patient and the
patient or the patient’s guardian refuses to grant
consent for an HIV test to determine whether the
patient has HIV, then, if a sample of the patient’s
blood is available, that blood shall be tested for
HIV.
(i)
If a sample of the patient’s blood is not otherwise available and the patient
refuses to
grant consent to draw blood, the employee or emergency
service worker may petition the superior
court for a court order mandating that the test be
performed.
(ii) Before a patient
or a sample of the patient’s blood is required to undergo an HIV test,
the employee or emergency service worker must submit
to a baseline HIV test within seventy-two
(72) hours of the exposure.
(iii) No person who
determines that an employee or emergency service worker has
sustained a significant exposure and authorizes the
HIV testing of a patient, nor any person or
health care facility who acts in good faith and
recommends the test be performed, shall have any
liability as a result of their actions carried out
under this chapter, unless those persons are proven
to have acted in bad faith.
(iv) For the purposes
of this section, “emergency service worker” means a worker
responding on behalf of a licensed ambulance/rescue
service, or a fire department or a law
enforcement agency, who, in the course of his/her
professional duties, has been exposed to bodily
fluids in circumstances that present a significant
risk of transmission of HIV, and has completed a
pre-hospital exposure form in accordance with section
23-4.1-19.
(5) In an emergency,
where due to a grave medical or psychiatric condition, and it is
impossible to obtain consent from the patient or, if
applicable under state law, the patient’s
parent, guardian, or agent.
(6) As permitted
under section 23-1-38 entitled “HIV Antibody Testing-Sperm Collection
or Donation”.
(7) Any individual
convicted of a violation of any provisions of Chapter 11-34 entitled
“Prostitution and Lewdness”, shall be required to be
tested for HIV unless already documented
HIV positive. All individuals tested under this
section shall be informed of their test results. All
individuals tested under this section who are
determined to be injecting and/or intra-nasal drug
users shall be referred to appropriate substance abuse
treatment as outlined in subsection 23-6.3-
3(e).
(8) Any individual
convicted of possession of any controlled substance as defined in
Chapter 21-28 entitled “Uniform Controlled Substances
Act”, that has been administered with a
hypodermic instrument, retractable hypodermic syringe,
needle, intra-nasally, or any similar
instrument adapted for the administration of drugs
shall be required to be tested for HIV unless
already documented HIV positive.
(9) All individuals
tested under this section shall be informed of their test results.
(10) In accordance
with the provisions of Chapter 11-37, entitled, "Sexual Assault", any
individual who has admitted to or been convicted of or
adjudicated wayward or delinquent by
reason of having committed any sexual offense
involving penetration whether or not a sentence or
fine is imposed or probation granted, shall be ordered
by the court upon petition of the victim,
immediate family members of the victim or legal
guardian of the victim, to submit to a blood test
for the presence of a sexually transmitted disease
including, but not limited to, HIV. All
individuals tested under this section shall be
informed of their test results.
(11) In accordance
with the provisions or section 42-56-37, entitled "HIV Testing",
every
individual who is committed to the adult correctional
institutions to any criminal offense, after
conviction, is required to be tested for HIV.
(b) It is unlawful
for any person to disclose to a third party the results of an individual’s
HIV test without the prior written consent of that
individual, except in accordance with section
23-6.3-7.
23-6.3-5.
Reasonable efforts to secure consent. -- No involuntary testing for
HIV shall
take place under any of the exceptions set forth in
section 23-6.3-4, unless reasonable efforts have
been made to: (1) Secure voluntary consent from the
individual to be tested, or in the case of a
minor patient, from the legal parent or guardian of
the minor patient; and (2) Provide verbal or
written information as specified in subsection
23-6.3-3(h).
23-6.3-6. Due
process – Right to bring suit. – Nothing in section 23-6.3-1 to
23-6.3-16
shall be construed to limit or deprive any person of
his or her right to due process of law, or to bar
an action of relief and/or damages before a court of
competent jurisdiction.
23-6.3-7. Confidentiality.
-- (a) It is unlawful for any person to disclose to a
third-party
the results of an individual's HIV test without the
prior written consent of that individual, except
for:
(1) A licensed
laboratory or other health care facility that performs HIV tests shall report
test results to the health care provider who requested
the test and to the director.
(2) A health care
provider shall enter HIV test results in the patient’s medical record.
(3) Notification to
the director of the department of children, youth and families, pursuant
to subdivision 23-6.3-4(3).
(4) As provided in
chapter 5-37.3, section 40.1-5-26, sections 23-6.3-10 and 23-6.3-14 or
as otherwise permitted by law.
(5) By a health care
provider to appropriate persons entitled to receive notification of
individuals with infectious or communicable diseases
pursuant to sections 23-5-9 and 23-28.36-3.
(b) This chapter
shall not be construed to interfere with any other federal or state laws or
regulations that provide more extensive protection
than provided in this chapter for the
confidentiality of health care information.
23-6.3-8. Protection
of records. -- (a) Providers of health care, public health
officials,
and any other person who maintains records containing
information on HIV test results of
individuals are responsible for maintaining full
confidentiality of this data and shall take
appropriate steps for their protection, including:
(1)
Keeping records secure at all times and establishing adequate confidentiality
safeguards for any records electronically stored;
(2)
Establishing and enforcing reasonable rules limiting access to these records;
and
(3)
Training persons who handle records in security objectives and technique.
(b)
The department shall evaluate reports of HIV/AIDS for completeness and
potential
referrals for service. All case reports shall be kept
in a confidential and secure setting. An
HIV/AIDS policy and protocol for security shall be
developed and implemented by the
department for this purpose.
(c)
The department shall evaluate its procedures for HIV/AIDS reporting on a
continuous basis for timeliness, completeness of
reporting, and security of confidential
information.
(d)
The department shall develop a protocol that shall be in accordance with the
most
recent recommendations of the CDC’s Guidelines for
National Human Immunodeficiency Virus
Case Surveillance, including monitoring for Human
Immunodeficiency Virus infection and
Acquired Immunodeficiency Syndrome, pertaining to
patient records and confidentiality;
provided, however, that in no event shall the protocol
be less protective than that required by state
law.
(e)
All reports and notifications made pursuant to this section shall be confidential
and
protected from release except under the provisions of
law. Any person aggrieved by a violation of
this section shall have a right of action in the
superior court and may recover for each violation.
23-6.3-9. Penalties
and remedies. -- The penalties and remedies contained in chapter 5-
37.3 entitled “Confidentiality of Health Care
Communications and Information” shall apply to
violations of sections 23-6.3-7 confidentiality and
23-6.3-8 protection of records.
23-6.3-10. Notification
of disclosure. -- (a) In all cases when an individual's HIV
test
results are disclosed to a third-party, other than a
person involved in the care and treatment of the
individual, and except as permitted by subsections
(1), (2)(i), (2)(ii), (2)(iv), or (4) of section 23-
6- 21 (permitted disclosures re: confidentiality), and
permitted by and disclosed in accordance
with the Federal Health Insurance Portability and
Accountability Act of 1996 (Public law 104-
191) enacted on August 21, 1996 and as thereafter
amended, the person so disclosing shall make
reasonable efforts to inform that individual in
advance of:
(1) The nature and
purpose of the disclosure;
(2) The date of
disclosure;
(3) The recipient of
the disclosed information.
(b) Health care
providers may inform third-parties with whom an HIV infected patient is
in close and continuous exposure related contact,
including, but not limited to a spouse and/or
partner, if the nature of the contact, in the health
care providers opinion, poses a clear and present
danger of HIV transmission to the third-party, and if
the physician has reason to believe that the
patient, despite the health care provider’s strong
encouragement, has not and will not inform the
third-party that they may have been exposed to HIV.
23-6.3-11. Discrimination
prohibited. -- No person, agency, organization, or legal entity
may discriminate against an individual on the basis of
a positive HIV test result, or perception of
a positive test, in housing, education, employment,
the granting of credit, public accommodation,
or delivery of services, nor shall an HIV test be
required as a condition of employment.
23-6.3-12.
Administrative relief. -- Any individual who believes that he or she
has been
unlawfully discriminated against in housing,
education, employment, the granting of credit,
public accommodations, or delivery of services on the
basis of a positive HIV test, or perception
of a positive test, may bring action for
administrative relief before the
commission; and that commission may hear the matter
and grant relief in those cases.
23-6.3-13. HIV
Counseling, Testing, Referral and Services Sites (HIV CTRS) -- The
department shall designate and fund HIV CTRS sites,
for providing both anonymous and
confidential HIV testing and HIV counseling and
referral services.
Anonymous and
confidential HIV testing provided by HIV CTRS sites funded by the
department shall screen individuals for their ability
to pay for such HIV testing, using a fee
schedule and screening process available to the
department on request. HIV CTRS sites shall not
deny HIV testing to any individual based on his or her
inability to pay.
23-6.3-14. Reporting
and notification of HIV/AIDS -- (a) Except in the case of
anonymous HIV testing, a diagnosis of HIV or AIDS
shall be notifiable and reportable to the
department by name.
The following
shall be reported to the department:
(1)
A diagnosis of HIV, according to the most current CDC case definition of HIV.
(2)
A diagnosis of AIDS, according to the most recent CDC case definition of AIDS.
(3)
A positive ELISA result of any HIV test and/or other FDA approved test indicative
of the presence of HIV.
(4) Notification of
a perinatal exposure to HIV shall be made to the
department
regardless of confirmatory testing. A perinatal case report for HIV shall be indicated by two (2)
positive polymerase chain reaction (PCR) tests; <18
months; and/or other
Administration approved tests that indicate the
presence of HIV in pediatric cases.
(b) The following
persons shall report information required by this section to the
department:
(1)
A health care provider who diagnoses or treats HIV/AIDS;
(2)
The administrator of a health care facility as defined in Chapter 23-17 who
diagnoses or treats HIV/AIDS; or
(3)
The administrator of a prison in which there is an HIV/AIDS infected individual
or
perinatal exposure to HIV/AIDS.
(c) A person
responsible for the administration of a clinical or hospital laboratory, blood
bank, mobile unit, or other facility in which a
laboratory examination of any specimen derived
from a human body yields serological, or other
evidence of HIV/AIDS, including perinatal
exposure to HIV/AIDS shall notify the department in a
timely manner.
(d) All positive HIV
test results shall be confirmed with a Western Blot or other FDA
approved confirmatory test.
23-6.3-15.
Laboratory analyses and reporting. -- (a) All biological
samples or
specimens taken for the purpose of performing
laboratory analysis for the detection of antibody to
HIV, by or under the direction or order of any health
care provider working within the scope of
his or her practice, shall be sent to the department
of health laboratory for analysis. This provision
shall not apply to those HIV tests performed in a
hospital laboratory or to those sites performing
rapid HIV testing.
(b) Hospitals shall
forward all positive confirmatory HIV test results to the department.
All sites performing HIV testing must submit an annual
HIV testing report to the department in
accordance with regulations promulgated by the
department.
(c) The department
laboratory shall conduct all confirmatory testing for HIV/AIDS with
the exception of written waivers issued by the
department as indicated in (d) below.
(d) Sites performing
non-venapuncture HIV testing (e.g. rapid testing),
must seek a
waiver from the department to provide confirmatory HIV
testing from a laboratory other than the
state laboratory, and shall forward all positive and
negative confirmatory HIV tests results to the
department.
(e) Except in the
case of anonymous HIV testing, a health care provider working within
the scope of his or her practice providing samples of
specimens for HIV testing, or results of HIV
tests to the department, shall include the name of the
patient and other identifying information
including information related to the individual’s
health insurance policy as applicable.
(f) Any HIV cases
reported in the previous code based system, shall remain in a code-
based data set. This does not prohibit a physician
from submitting or requesting that an updated
name case report on a patient replace a previously
coded case report.
23-6.3-16.
Insurance Exemption. – (a) Sections 23-6.3-1 through 23-6.3-14 do
not
apply to the offering or sale of life insurance in
insurance company offering or selling life insurance
within
individual to be tested for infection with human
immunodeficiency virus (HIV) or any other
identified causative agent of HIV for purposes of
determining insurability shall: (1) Give that
individual prior written notice of those requirements;
(2) Proceed with that testing only upon the
written authorization of the individual or in the
event the individual is a minor, the individual's
parent or guardian; and (3) Notify the tested person
of his or her positive or negative test results.
If the person has a positive test result he or she
must receive appropriate information and referral
from the insurance company. Notwithstanding anything
in this chapter to the contrary, life
insurance companies offering or selling life insurance
in
disclose HIV test results in accordance with this
chapter. Nothing in this chapter prohibits that
company from collecting data for statistical purposes,
so long as the insured is not identified.
However, nothing in this section shall be construed to
permit that insurance company to cancel or
refuse to renew a life insurance policy that by its
terms has not lapsed on the basis of a positive
HIV test result.
(b) The provisions of
this chapter apply to the offer or sale of health benefits in this state
by any company regulated under the laws of this state,
including, but not limited to, title 27 and
chapter 42-62, provided, however, this chapter does
not apply to the following:
(1)
Individual health benefit policies;
(2)
Small group health benefits plans, i.e., groups having fewer than twenty-five
(25)
employees eligible to participate in an employer
sponsored plan, or, in the case of non-employer
groups, a group having fewer than twenty-five (25)
employees;
(3)
Late entrants into any group health benefits plan, regardless of the size of
the group.
A late entrant shall be defined as any individual who
does not enroll into a health plan when first
eligible under the plan, but who later seeks coverage
under the group plan;
(4)
Where an individual seeks to become eligible for an amount of group disability
income benefit, which benefit would be in excess of
the insurer's non-medical maximum as
defined under the group plan.
(c) Any company
offering or selling health benefits in this state and regulated under the
laws of this state that requires an individual to be
tested for infection with HIV or any other
identified causative agent of HIV as permitted in
paragraphs (2)(i) to (iv) for purposes of
determining insurability shall: (1) Give that
individual prior written notice of those requirements;
and (2) Proceed with that testing only upon the
written authorization of the individual, or in the
event the individual is a minor, the individual's parent
or guardian. Notwithstanding anything in
this chapter to the contrary, companies offering or
selling health benefits in this state may
otherwise obtain or disclose HIV test results in
accordance with this chapter. Nothing in this
chapter shall prohibit that company from collecting
data for statistical purposes so long as the
identity of the insured may not be determined from the
information released.
(d) Nothing in this
chapter shall be construed to permit any company that offers or sells
health benefits in this state to cancel or refuse to
renew a health benefit, which has not by its
terms lapsed, on the basis of a positive HIV test
result.
23-6.3-17. Rules
and Regulations. -- The director is authorized to promulgate
regulations as he or she deems necessary or desirable
to implement the provisions of this chapter,
in accordance with the provisions set forth in section
23-1-17 and chapter 42-35.
23-6.3-18.
Severability. -- If any provision of this chapter is held by a court
to be invalid,
that invalidity shall not affect the remaining
provisions of the chapter, and to this end the
provisions of the chapter are declared severable.
23-6.3-19.
Construction of the chapter. -- This chapter shall be liberally
construed to
accomplish the purposes sought in it.
SECTION
2. Section 11-34-10 in chapter 11-34 of the General Laws entitled
"Prostitution and
Lewdness" is hereby amended to read as follows:
11-34-10. Human
Immunodeficiency Virus (HIV). -- (a) Any person convicted of a
violation of any provisions of this chapter shall be
required to be tested for Human
Immunodeficiency Virus (HIV) as provided for in
chapter 23-6.3. No consent for the testing shall
be required.
(b)
The department of health shall maintain sites for providing both anonymous and
confidential HIV testing, and HIV counseling and
referral. Each site, funded by the department of
health, shall offer free testing, counseling and
referral for indigent parties and other individuals
without health insurance, offer a sliding scale for
payment for all other individuals and, in the
case of confidential testing, screen for ability to
pay through a third-party insurer. In the case of
nonfunded sites for HIV testing, organizations and/or institutions
performing the test shall offer
free testing, counseling and referral for indigent
parties and other individuals without health
insurance.
(c)
All persons tested under this section shall be provided pre-test and post-test
counseling by individuals trained by the department of
health, as an HIV testing counselor, in
accordance with regulations promulgated by the
department of health; provided, that the
counseling shall be in accordance with acceptable
medical standards.
(d)
All persons who are tested under this section, who are determined to be
injecting
drug users, shall be referred to appropriate sources
of substance abuse treatment by the HIV
testing counselor and/or the attending practitioner as
follows:
(1)
Those persons who test positive for HIV infection shall be given priority for
those
outpatient substance abuse treatment programs that are
sponsored or supported by the appropriate
state agency responsible for these services.
(2)
Those persons who are injecting drug users and test negative for HIV infection
shall
be referred, by the HIV testing counselor and/or
attending practitioner, to the appropriate state
agency responsible for these services for earliest
possible evaluation and treatment
SECTION
3. Section 11-37-17 in chapter 11-37 of the General Laws entitled "Sexual
Assault" is hereby
amended to read as follows:
11-37-17. Human
Immunodeficiency Virus (HIV) – Mandatory testing. -- (a) Any
person who has admitted to or been convicted of or
adjudicated wayward or delinquent by reason
of having committed any sexual offense involving
sexual penetration, as defined in § 11-37-1,
whether or not sentence or fine is imposed or
probation granted, shall be ordered by the court
upon the petition of the victim, immediate family
members of the victim or legal guardian of the
victim, to submit to a blood test for the presence of
a sexually transmitted disease including, but
not limited to, the Human Immunodeficiency Virus (HIV)
which causes Acquired Immune
Deficiency Syndrome (AIDS) as provided for in
chapter 23-6.3. Notwithstanding the provision of
§ 23-6-12, no consent for the testing shall be
required.
(b)
Notwithstanding the limitations imposed by §§ 23-6-17 and 5-37.3-4, the results
of
the HIV test shall be reported to the court, which
shall then disclose the results to any victim of
the sexual offense who requests disclosure. Review and
disclosure of blood test results by the
courts shall be closed and confidential, and any
transaction records relating to them shall also be
closed and confidential.
(c)
Upon the victim's request, the department of health shall help provide HIV
testing,
as well as professional counseling to assist the
victim in their understanding of the extent to
which the particular circumstances of the crime may or
may not have put the victim at risk of
transmission of HIV from the perpetrator, to ensure
that the victim understands both the benefits
and limitations of the current test for HIV, and to
obtain referrals to appropriate health care and
support services.
(d)
All persons tested under this section shall be informed of the results of the
blood
test.
(e)
Pretest and post-test counseling shall be in accordance with regulations
adopted by
the department of health; provided, that this
counseling shall be in accordance with acceptable
medical standards.
SECTION
4. Section 21-28-4.20 in chapter 21-28 of the General Laws entitled
"Uniform
Controlled Substances
Act" is hereby amended to read as follows:
21-28-4.20. Human
Immunodeficiency Virus (HIV) – Testing. -- (a) Any person
convicted of possession of any controlled substance
that has been administered with a
hypodermic instrument, retractable hypodermic syringe,
needle, or any similar instrument
adapted for the administration of drugs shall be
required to be tested for human
immunodeficiency virus (HIV) as provided for in
chapter 23-6.3. No consent for the testing shall
be required.
(b)
The department of health shall maintain sites for providing both anonymous and
confidential HIV testing, and HIV counseling and
referral. Each site, funded by the department of
health, shall offer free testing, counseling and
referral for indigent parties and other individuals
without health insurance, offer a sliding scale for
payment for all other individuals and, in the
case of confidential testing, screen for ability to
pay through a third-party insurer. In the case of
nonfunded sites for HIV testing, organizations and/or
institutions performing the test shall offer
free testing, counseling and referral for indigent
parties and other individuals without health
insurance.
(c)
All persons tested under this section shall be provided pre-test and post-test
counseling by individuals trained by the department of
health in accordance with regulations
promulgated by the department of health; provided,
that this counseling shall be in accordance
with acceptable medical standards.
(d)
All persons who are tested under this section, who are convicted of possession
of
any controlled substance that has been administered
with a hypodermic instrument, retractable
hypodermic syringe, needle, or any similar instrument
adopted for the administration of drugs
shall be referred by the HIV testing counselor and/or
attending practitioner to appropriate sources
of drug treatment by the department of health as
follows:
(1)
Those persons who test positive for HIV infection shall be given priority for
those
outpatient treatment programs which are supported by a
state agency;
(2)
Those persons who test negative for HIV infection shall be referred to the
appropriate division in the department of health for
earliest possible evaluation and treatment.
SECTION
5. Section 23-11-17 in chapter 23-11 of the General Laws entitled “Sexually
Transmitted Diseases” is
hereby amended to read as follows:
23-11-17. Human
immunodeficiency virus (HIV) testing. -- (a) (1) The physician
or
health care provider attending any person for a
suspected sexually transmitted disease shall offer
testing for human immunodeficiency virus (HIV). All
testing pursuant to this section shall be
performed in accordance with sections 23-6-17
(confidentiality) and 23-6-18 (protection of the
medical record) and the informed consent standards
contained in chapter 6 of title 23 as
provided
for in chapter 23-6.3.
(2) Each person tested
and counseled shall first be provided with an "informed consent
form" as provided by subsection 23-6-11(3), and
shall specifically be given the opportunity to
decline or opt-out of testing, which he or she shall
sign and date in acknowledgment of his/her
election to be tested.
(b) In the event an
individual consents to anonymous testing and tests positive for HIV,
the HIV testing counselor shall provide the client an
informed consent form as provided by
subsection 23-6-11(3). If an individual is tested
anonymously and is found positive on the initial
screening test or during a post-test consultation, the
counselor shall discuss, with the client,
options regarding referrals and reporting of this
positive screening, including the necessity of
accessing a physician. The department of health shall
maintain sites for providing both
anonymous and confidential HIV testing, and HIV
counseling and referral. Each site, funded by
the department of health, shall offer free testing,
counseling and referral for indigent parties and
other individuals without health insurance, offer a
sliding scale for payment for all other
individuals and, in the case of confidential testing,
screen, for ability to pay through a third-party
insurer. In the case of nonfunded
sites for HIV testing, organizations and/or institutions
performing the test shall offer free testing,
counseling and referral for indigent parties and other
individuals without health insurance.
(c) All persons
tested under this section shall be counseled and tested in accordance with
regulations promulgated by the department of health;
provided, however, that the counseling shall
be in accordance with acceptable medical standards,
and no test results shall be given by any
means (e.g. phone, mail, e-mail, fax, etc.) other than
in person. Counselors for HIV counseling,
testing and referral must undergo training given by
the department of health to become a qualified
professional counselor.
SECTION
6. Section 23-13-19 in chapter 23-13 of the General Laws entitled “Maternal
and Child Health Services
for Children with Special Health Care Needs “ is hereby amended to
read as follows:
23-13-19. Human
immunodeficiency virus (HIV) testing. -- (a) Every physician or
health care provider attending any person for prenatal
care or family planning services shall
include HIV screening consistent with the
provisions of chapter 23-6.3. in these settings so as to
promote earlier detection of HIV with unrecognized or
no identified risk factors. HIV testing
shall be included in the routine panel of prenatal
tests for all pregnant women unless testing is
declined. Repeat testing in the third trimester is
recommended if determined by the physician.
(b)
No person shall order the performance of an HIV-related test without first
providing
the information and counseling set forth in subsection
23-13-19(c), informing the woman that she
has a right to decline testing, and obtaining the oral
consent of the patient to be tested, or of a
person authorized to consent to health care for such
individual, which consent and counseling
shall be documented in the patient's medical record.
(c)
Prior to performing an HIV-related test, patients shall be provided pre-test
counseling. To allow greater flexibility for pre-test
counseling by allowing client-specific
counseling, a physician or health care provider may
tailor HIV counseling to best meet the needs
of the individual to be tested. Decisions concerning
tailoring and the extent of pre-test counseling
shall be made on a case-by-case basis, but in no event
shall a woman be tested for HIV pursuant
to this section without being provided with oral or
written information that includes the
following:
(1)
An explanation of HIV infection;
(2)
A description of the interventions that can reduce HIV transmission from mother
to
infant;
(3)
The meaning of positive and negative test results;
(4)
An opportunity to ask questions.
The
department of health shall provide appropriate health care providers with the
written information, in multiple languages, required
in subsections (1), (2) and (3) herein.
(d)
No physician or health care professional providing prenatal health services to
a
pregnant woman shall perform an HIV test of any woman
who has not given consent to testing.
(e)
In the event that a pregnant woman tests positive for HIV/AIDS, the physician,
health care provider or counselor shall provide
post-test counseling, which shall include
information about:
(1)
The meaning of the test result;
(2)
The possible need for additional testing;
(3)
Measures to prevent the transmission of HIV;
(4)
Measures to prevent perinatal HIV transmission; and
(5)
The availability of, and referrals for, appropriate health care services,
including
mental health care, and appropriate social and support
services.
(f)
All HIV testing pursuant to this section shall be kept confidential in
accordance with
§ 23-6-17.
(g)
No physician or health care provider shall discriminate against a woman because
she is HIV positive or has declined to take an HIV
test.
(h)
In the event an individual consents to anonymous testing and tests positive for
HIV,
the HIV testing counselor shall discuss with the
client options regarding referrals and reporting of
this positive screening, including the necessity of
accessing a physician. The department of health
shall maintain sites for providing both anonymous and
confidential HIV testing, and HIV
counseling and referral. Each site, funded by the
department of health, shall offer free testing,
counseling and referral for indigent parties and other
individuals without health insurance, offer a
sliding scale for payment for all other individuals
and, in the case of confidential testing, screen
for ability to pay through a third-party insurer. In
the case of nonfunded sites for HIV testing,
organizations and/or institutions performing the test
shall offer free testing, counseling and
referral for indigent parties and other individuals
without health insurance.
(i) All persons tested under this section shall be counseled
and tested in accordance
with regulations promulgated by the department of
health.
SECTION
7. Sections 23-17-31 and 23-17-31.1 in chapter 23-17 of the General Laws
entitled "Licensing of
Health Care Facilities" are hereby amended to read as follows:
23-17-31. Human
immunodeficiency virus (HIV) testing – Hospitals. -- (a) Hospital
patients in any hospital licensed under this chapter
shall be offered testing for human
immunodeficiency virus (HIV) as set forth in
chapter 23-6.3. unless excluded by regulations
developed by the department of health, or unless the
test is deemed inappropriate by a physician
caring for the patient and so noted in the person's
medical record. All testing pursuant to this
section shall be performed in accordance with §§
23-6-12 and 23-6-13. The identity of the
individuals tested under this section shall be
maintained only at the hospital site where the sample
is drawn, and shall not be released except as provided
by statute. Each person who is offered a
test and counseling shall be provided with an
"informed consent form" which he or she shall sign
and date in acknowledgment of the offer.
(b)
The department of health is responsible for reasonable costs associated with
performing and reporting the results of the HIV tests.
(c)
All persons tested under this section shall be provided pretest and post-test
counseling, and the department of health shall define
in regulation the nature and scope of the
counseling. The counseling shall be in accordance with
acceptable medical standards.
(d)
The department of health will either provide or pay for all pretest and
post-test
counseling. It will negotiate with the hospitals
concerning incremental costs associated with
pretest and post-test counseling and will provide
reasonable reimbursement of these costs or
provide the services themselves in the case of
post-test counseling.
23-17-31.1. Human
immunodeficiency virus (HIV) testing – Facilities for drug
users. -- (a) Every physician or
health care provider attending any person for any service offered
at a facility for injecting drug users, shall offer
testing for human immunodeficiency virus (HIV).
All testing pursuant to this section shall be
performed in accordance with the provisions of
chapter 23-6.3
§§ 23-6-17 (confidentiality) and 23-6-18 (protection of records), except
where
federal confidentiality laws may supersede.
(b)
Each person tested and counseled shall first be provided an "informed
consent
form" as provided by subsection 23-6-11(3), which
he/she shall sign and date, and shall
specifically be given the opportunity to decline or
opt-out of the testing.
(c)
In the event an individual consents to anonymous testing and tests positive for
HIV,
the HIV testing counselor shall discuss, with the
client, options regarding referrals and reporting
of this positive screening, including the necessity of
accessing a physician.
(d)(b)
The department of health shall maintain sites for providing both anonymous and
confidential HIV testing, and HIV counseling and
referral. Each site, funded by the department of
health, shall offer free testing, counseling and
referral for indigent parties and other individuals
without health insurance, offer a sliding scale for
payment for all other individuals and, in the
case of confidential testing, screen for ability to
pay through a third-party insurer. In the case of
nonfunded sites for HIV testing, organizations and/or
institutions performing the test shall offer
free testing, counseling and referral for indigent
parties and other individuals without health
insurance.
(e)
All persons tested under this section shall be counseled and tested in
accordance
with regulations adopted by the department of health.
SECTION
8. Section 40.1-24-20 in chapter 40.1 of the General Laws entitled “Licensing
of Facilities and Programs
for People who are Mentally Ill and/or Developmentally Disabled” is
hereby amended to read as
follows:
40.1-24-20. Human
immunodeficiency virus (HIV) testing – Facilities for drug
users. -- (a) Every physician or health care provider attending any
person for any service offered
at a facility for intravenous drug users, shall offer
testing for human immunodeficiency virus
(HIV). All testing pursuant to this section shall be
performed in accordance with the provisions of
chapter 23-6.3
§§ 23-6-17 (confidentiality) and 23-6-18 (protection of medical records) and
the
informed consent standards contained in chapter 6 of
title 23, except where federal confidentiality
laws may supercede.
(b)
Each person tested and counseled shall first be provided with an "informed
consent
form" as provided by subsection 23-6-11(3), which
he/she shall sign and date, and shall
specifically be given the opportunity to decline or
opt-out of the testing.
(c)
In the event an individual consents to anonymous testing and tests positive for
HIV,
the HIV testing counselor shall discuss with the
client options regarding referrals and reporting of
this positive screening, including the necessity of
accessing a physician.
(d)
The department of health shall assist providers with performing and reporting
the
results of the HIV tests.
(e)
The department of health shall maintain sites for providing both anonymous and
confidential HIV testing, and HIV counseling and
referral. Each site, funded by the department of
health, shall offer free testing, counseling and
referral for indigent parties and other individuals
without health insurance, offer a sliding scale for
payment for all other individuals and, in the
case of confidential testing, screen for ability to
pay through a third-party insurer. In the case of
nonfunded sites for HIV testing, organizations and/or
institutions performing the test shall offer
free testing, counseling and referral for indigent
parties and other individuals without health
insurance.
(f)
All persons tested under this section shall be counseled and tested in
accordance
with regulations promulgated by the department of
health.
SECTION
9. Section 23-1-36.1 in chapter 23-1 of the General Laws entitled “Department
of Health” is hereby
repealed.
23-1-36.1 Director's duties regarding diseases – Marriage licenses.
– The director of
health shall prepare and submit to the clerk's office
of each city and town in the state a packet
containing all appropriate information relating to any
disease, including but not limited to,
sexually transmitted diseases or general health issue
as the director of health deems necessary, for
distribution to all persons applying for a marriage
license. The individual packet shall include an
"AIDS Testing and Notification Form" which
shall clearly state that the department of health
provides confidential HIV tests, at no costs, and
further provides pre-test and post-test
educational materials and post-test counseling for HIV
positive persons in accordance with
regulations adopted by the department of health;
provided, however, that any counseling shall be
in accordance with acceptable medical standards.
SECTION
10. Sections 23-6-10, 23-6-11, 23-6-12, 23-6-13, 23-6-14, 23-6-15, 23-6-16,
23-6-17, 23-6-18, 23-6-19,
23-6-20, 23-6-21, 23-6-22, 23-6-23, 23-6-24, 23-6-25, 23-6-26 and
23-6-27 in chapter 23-6 of
the General Laws entitled “Prevention and Suppression of Contagious
Diseases” are hereby
repealed.
23-6-10 Purpose.
– The purpose of §§ 23-6-10 – 23-6-24 is to protect the public
against transmission of human immunodeficiency virus
(HIV), and to protect persons who are
infected with HIV from discrimination.
23-6-11 Definitions.
– As used in §§ 23-6-10 – 23-6-24:
(1)
"AIDS" means the medical condition known as acquired immune
deficiency
syndrome, caused by infection of an individual by the
human immunodeficiency virus (HIV).
(2)
"HIV" means the human immunodeficiency virus, the pathogenic organism
responsible for the acquired immunodeficiency syndrome
(AIDS).
(3)
"Informed consent form" means a standardized form provided by the
department of health to those individuals offered HIV
testing. The form shall be developed by the
department and shall contain the following
information:
(i) The public health rationale for HIV testing and
information describing the nature of
the HIV disease;
(ii)
The availability and cost of HIV testing and counseling;
(iii)
That test results are confidential with certain exceptions;
(iv)
A list of exceptions to confidentiality of test results;
(v)
That the test is voluntary and that an informed consent form must be signed
before
testing;
(vi)
That by signing this form the person is only acknowledging that the HIV test
and
counseling have been offered and/or that he or she has
declined (opted-out) the offer to be tested;
and
(vii)
Notwithstanding the provisions of subsections (v) and (vi) above, in the event
an
individual consents to anonymous testing, the HIV
testing counselor and/or attending practitioner
ordering the test shall receive only verbal
confirmation from the client that the client understands
all applicable information contained within the
informed consent form.
(4)
"HIV test" means any currently medically accepted diagnostic test for
determining
infection of an individual by HIV.
(5)
"Person" means any individual, firm, partnership, corporation,
company,
association, or joint stock association, state or
political subdivision or instrumentality of a state.
(6)
"Physician" means a person licensed to practice allopathic or
osteopathic medicine
pursuant to the provisions of chapter 37 of title 5.
(7)
"Services" means health care and social support services.
(8)
"Occupational health representative" is an individual, within a
health care facility,
trained to respond to occupational, particularly blood
borne, exposures.
23-6-12 Testing.
– (a) Recommendations regarding HIV testing shall reference the most
current guidelines issued by the Centers for Disease
Control and Prevention (CDC) pertaining to
HIV Counseling, Testing and Referral of Adults,
Adolescents and Pregnant Women; provided,
however, those guidelines shall be interpreted by the
department of health so as to best serve the
clients and patients seeking HIV testing, and shall in
no event be interpreted or implemented in a
manner inconsistent with the minimum informed consent
standards of this Title or other
protections of state law. The recommendations shall
emphasize that: (1) HIV screening is
recommended in all health care settings, after the
patient is informed, in accordance with this
chapter's informed consent standards, that HIV testing
will be done unless the patient declines;
(2) persons at high-risk for HIV infection should be
screened for HIV at least annually, in
accordance with this chapter's informed consent
standards; and (3) only verbal informed consent
is required for anonymous testing.
(b)
Unless otherwise excepted by the provisions of this chapter, no person may be
tested for the presence of HIV where the test result
can be identified with a specific individual,
unless he or she has given his or her informed consent
by his or her signature or that of a parent,
guardian, or agent on a written informed consent form
specifically relating to the test after
discussion of implications of the test with a
qualified professional. A physician or health care
provider attending to any person who may be at risk
for HIV infection shall routinely offer the
HIV test to those patients. All testing pursuant to
this section shall be performed in accordance
with §§ 23-6-17 (confidentiality) and 23-6-18
(protection of the medical record) and this chapter's
informed consent standards.
(c)
In the event an individual consents to anonymous testing and tests positive for
HIV,
the HIV testing counselor shall discuss with the
client options regarding referrals and reporting of
this positive screening, including the necessity of
accessing a physician.
(d) In
addition to, and separate from, the requirement of subdivision 23-6-26(b)(4),
all
HIV CD4 T-lymphocyte test results and all HIV viral
load detection test results, detectable and
nondetectable, shall be reported to the department of health
through a department designed
reporting system that uses a nonname
based code and contains no patient identifying information.
These reports may be used by the department to improve
the clinical progress of patients through
contact with their physicians, and to use the
aggregate information collected to develop and
improve prevention programs and create better access
to care.
23-6-13 Informed
consent form. – The written informed consent form shall include at
least the following:
(1)
The name and signature of the party(s) seeking and consenting to the HIV test;
(2)
The name and nature of the test;
(3)
The reasons for conducting the test;
(4)
The fact that the test results shall remain confidential except as required by
law; and
(5)
Explanation of how test results will affect the tested person's ability to
obtain
services from the party requesting the test, or those
for whom he or she is acting.
23-6-14.
Exceptions. -- A physician or other health care provider may
secure a test
sample for the presence of HIV without consent under
the following conditions:
(1) When the person
to be tested is under one year of age;
(2) When the person
to be tested is between one and thirteen (13) years of age and
appears to be symptomatic for HIV;
(3) When the person
to be tested is a minor under the care and authority of the
department of children, youth, and families, and the
director of that department certifies that an
HIV test is necessary to secure health or human
services for that person;
(4) When a person
(the complainant) can document significant exposure to blood or
other bodily fluids of another person (the individual
to be tested), during the performance of the
complainant's occupation, providing:
(i)
The complainant completes an incident report within forty-eight (48) hours of
the
exposure, identifying the parties to the exposure,
witnesses, time, place, and nature of the event;
(ii) The complainant
submits to a baseline HIV test and is negative on that test for the
presence of HIV, within seventy-two (72) hours of the
exposure;
(iii) There has been
a significant percutaneous or mucus membrane
exposure, i.e.,
needlestick, bite, splash over open wound, broken skin, or mucus
membrane, by blood or bodily
fluids of the person to be tested of a type and in
sufficient concentration to permit transmission of
HIV if present in those fluids; and
(iv) If a sample of
the patient's blood is not otherwise available and the patient refuses to
grant informed consent, then the complainant may
petition the superior court for a court order
mandating that the test be performed.
(5) (i) In a licensed health care facility or in the private
office of a physician in the event
that an occupational health representative or
physician, registered nurse practitioner, physician
assistant, or nurse-midwife not directly involved in
the exposure, determines that a health care
provider, other than one in a supervisory position to
the person making the determination had a
significant exposure to the blood and/or body fluids
of a patient and the patient or the patient's
guardian refuses to grant consent for an HIV test to
determine whether the patient has HIV, then,
if a sample of the patient's blood is available, that
blood shall be tested for HIV.
(ii) If a sample of the
patient's blood is not otherwise available and the patient refuses to
grant informed consent, then the health care worker
may petition the superior court for a court
order mandating that the test be performed.
(iii) Before a patient
or a sample of the patient's blood is required to undergo an HIV
test, the health care provider must submit to a
baseline HIV test within seventy-two (72) hours of
the exposure.
(iv) No person who
determines that a health care worker has sustained a significant
exposure and authorizes the HIV testing of a patient,
nor any person or health care facility who
acts in good faith and recommends the test be
performed, shall have any liability as a result of
their actions carried out under this chapter, unless
those persons are proven to have acted in bad
faith.
(6) In an emergency,
where due to a grave medical or psychiatric condition, it is
impossible to obtain consent from the patient or the
patient's parent, guardian, or agent.
(7) As permitted
under sections 23-18.6.1-14(c) and (d) (organ transplant), 23-1-38
(sperm donation), and 23-8-1.1 (person under eighteen
(18) years may give consent for testing for
communicable diseases).
(8) Mandatory
testing for human immunodeficiency virus (HIV) conducted pursuant to
sections 42-56-37 (testing at ACI), 11-34-10
(prostitution), and 21-28-4.20 (IDU and needles).
23-6-15 Reasonable
effort to secure consent. – No involuntary testing for HIV shall
take place under any of the exceptions set forth in §
23-6-14 until reasonable efforts have been
made to secure voluntary informed consent.
23-6-16 Due
process – Right to bring suit. – Nothing in §§ 23-6-10 – 23-6-24
shall be
construed to limit or deprive any person of his or her
right to due process of law, or to bar an
action for relief and/or damages before a court of
competent jurisdiction.
23-6-17 Confidentiality.
– (a) It is unlawful for any person to disclose to a third party
the results of an individual's HIV test without the
prior written consent of that individual, or in the
case of a minor, the minor's parent, guardian, or
agent, on a form that specifically states that HIV
test results may be released, except:
(1)
A licensed laboratory or other health care facility which performs HIV tests
shall
report test results to a patient's licensed physician
or other medical personnel who requested the
test, and to the director of the department of health,
pursuant to rules and regulations adopted for
that purpose.
(2)
A physician:
(i) May enter HIV test results in the medical record, as
would be the case with any
other diagnostic test;
(ii)
May notify other health professionals directly involved in the care of the
individual
testing positive on the HIV test, or to whom that
individual is referred for treatment;
(iii)
May notify persons exposed to blood or other body fluids of an individual who
tests positive for HIV, pursuant to § 23-6-14(4)
through (8) (exceptions) and § 23-17-31 (testing
of hospitalized patients);
(iv)
May notify the director of the department of children, youth, and families,
pursuant
to § 23-6-14(3) (testing of a minor to secure
services); and
(v)
May inform third parties with whom an HIV-infected patient is in close and
continuous exposure related contact, including but not
limited to a spouse and/or partner, if the
nature of the contact, in the physician's opinion,
poses a clear and present danger of HIV
transmission to the third party, and if the physician
has reason to believe that the patient, despite
the physician's strong encouragement, has not and will
not inform the third party that they may
have been exposed to HIV;
(3)
As permitted in subsections (b)(1), (2), (5), (6), (8), (9), (10), (11), (12),
(13), (14),
and (15) of § 5-37.3-4 (confidentiality of health care
information) and § 40.1-5-26 (disclosure of
confidential information under mental health law), or
as otherwise required by law.
(4)
By a health care provider to appropriate persons entitled to receive
notification of
persons with infectious or communicable diseases
pursuant to §§ 23-5-9 (report of infectious
disease upon death) and 23-28.36-3 (notification to
EMT, firefighter, police officer of infectious
disease).
(b)
Facilities and other health care providers subject to this section will have
documentation that each person with access to any
confidential information understands and
acknowledges that the information may not be disclosed
except as provided herein. The director
shall establish protocols for collecting, maintaining
and transferring the information (and
ultimately destroying the information) to ensure the
integrity of the transfer, and, if possible, the
director may suspend any transfer, even to CDC, if he
or she is not confident that the transfer is
secure.
23-6-18 Protection
of records. – (a) Providers of health care, public health officials,
and
any other person who maintains records containing
information on HIV test results of individuals
are responsible for maintaining full confidentiality
of these data, as provided in § 23-6-17, and
shall take appropriate steps for their protection,
including:
(1)
Keeping records secure at all times and establishing adequate confidentiality
safeguards for any records electronically stored;
(2)
Establishing and enforcing reasonable rules limiting access to these records;
and
(3)
Training persons who handle records in security objectives and technique.
(b)
The department shall evaluate reports of HIV/AIDS for completeness and
potential
referrals for service. All case reports shall be kept
in a confidential and secure setting. An
HIV/AIDS policy and protocol for security shall be
developed and implemented by the
department for this purpose.
(1)
The department shall evaluate its procedures for HIV/AIDS reporting on a
continuous basis for timeliness, completeness of
reporting, and security of confidential
information.
(2)
The department's protocol shall be in accordance with the recommendations of
the
December 10, 1999 Morbidity and Mortality Weekly
Report Recommendations and Reports,
"CDC Guidelines for National Human
Immunodeficiency Virus Case Surveillance, including
monitoring for Human Immunodeficiency Virus infection
and Acquired Immunodeficiency
Syndrome" document, or its successor document,
that pertains to patient records and
confidentiality; provided, however, that in no event
shall the protocol be less protective than that
required by state law.
(3)
All reports and notifications made pursuant to this section shall be
confidential and
protected from release except under the provisions of
this law. Any person aggrieved by a
violation of this section shall have a right of action
in the superior court and may recover for each
violation:
(i) Against any person who negligently violates a provision
of this section, damages of
one thousand dollars ($1,000) or actual damages,
whichever is greater.
(ii)
Against any person who intentionally or recklessly violates a provision of this
section, damages of five thousand dollars ($5,000) or
actual damages, whichever is greater.
(iii)
Reasonable attorneys' fees;
(iv)
Such other relief, including an injunction, as the court may deem appropriate;
and
(v)
Any action under this section is barred unless the action is commenced within
three
(3) years after the cause of action accrues. A cause
of action shall accrue when the injured party
becomes aware of an unauthorized disclosure.
23-6-19 Penalties
and remedies. – The penalties and remedies contained in § 5-37.3-9
shall apply to violations of §§ 23-6-17 and 23-6-18.
23-6-20.
Notification of disclosure. -- In all cases when an individual's
HIV test results
are disclosed to a third party, other than a person
involved in the care and treatment of the
individual, and except as permitted by subsections
(a)(1), (a)(2)(i), (a)(2)(ii), (a)(2)(iv), or (a)(4)
of section 23-6-17 (permitted disclosures re:
confidentiality), and permitted by and disclosed in
accordance with the Federal Health Insurance
Portability and Accountability Act of 1996 (Public
law 104-191) enacted on August 21, 1996 and as
thereafter amended, the person so disclosing
shall make reasonable efforts to inform that
individual in advance of:
(1) The nature and
purpose of the disclosure;
(2) The date of
disclosure;
(3) The recipient of
the disclosed information.
23-6-21 Protection
of public health. – Nothing contained in §§ 23-6-10 – 23-6-24 shall
bar the director of health from exercising the
authority and responsibilities conferred on him or
her by law in protecting the public health.
23-6-22 Discrimination
prohibited. – No person, agency, organization, or corporate
body may discriminate against a person on the basis of
a positive HIV test result, or perception of
a positive test, in housing, employment, the granting
of credit, public accommodation, or delivery
of services, nor shall an HIV test be required as a
condition of employment, except where
nondiscrimination can be shown, on the testimony of
competent medical authorities, to constitute
a clear and present danger of HIV transmission to
others.
23-6-23 Administrative
relief. – Any person who believes that he or she has been
unlawfully discriminated against in housing,
employment, the granting of credit, public
accommodations, or delivery of services on the basis
of a positive HIV test, or perception of a
positive test, may bring action for administrative
relief before the
commission; and that commission may hear the matter
and grant relief in those cases.
23-6-24.
Insurance exemption. -- (a) Sections 23-6-10 -- 23-6-23 do not
apply to the
offering or sale of life insurance in
offering or selling life insurance within
infection with human immunodeficiency virus (HIV) or
any other identified causative agent of
HIV for purposes of determining insurability shall:
(1) give that individual prior written notice of
those requirements, and (2) proceed with that testing
only upon the written authorization of the
individual or in the event the individual is a minor,
the individual's parent or guardian.
Notwithstanding anything in sections 23-6-10 --
23-6-23 to the contrary, life insurance companies
offering or selling life insurance in
results in accordance with section 23-6-17(3). Nothing
in this chapter prohibits that company
from collecting data for statistical purposes, so long
as the insured is not identified. However,
nothing in this section shall be construed to permit
that insurance company to cancel or refuse to
renew a life insurance policy that by its terms has
not lapsed on the basis of a positive HIV test
result.
(b) (1) "Health
benefits" include accident and sickness, including disability or health
insurance, health benefit plans and/or policies,
hospital, health, or medical service plans, or any
health maintenance organization plan pursuant to title
27 or otherwise.
(2) The provisions
of sections 23-6-10 -- 23-6-23 apply to the offer or sale of health
benefits in this state by any company regulated under
the laws of this state, including, but not
limited to, title 27 and chapter 62 of title 42;
provided, however, sections 23-6-10 -- 23-6-23 do
not apply to the following:
(i)
Individual health benefit policies;
(ii) Small group
health benefits plans, i.e., groups having fewer than twenty-five (25)
employees eligible to participate in an employer
sponsored plan, or, in the case of non-employer
groups, a group having fewer than twenty-five (25)
employees;
(iii) Late entrants
into any group health benefits plan, regardless of the size of the group.
A late entrant shall be defined as any individual who
does not enroll into a health plan when first
eligible under the plan, but who later seeks coverage
under the group plan;
(iv) Where an
individual seeks to become eligible for an amount of group disability
income benefit, which benefit would be in excess of
the insurer's non-medical maximum as
defined under the group plan.
(3) Any company
offering or selling health benefits in this state and regulated under the
laws of this state that requires an individual to be
tested for infection with HIV or any other
identified causative agent of HIV as permitted in
paragraphs (2)(i) to (iv) for purposes of
determining insurability shall: (i)
give that individual prior written notice of those requirements,
and (ii) proceed with that testing only upon the
written authorization of the individual, or in the
event the individual is a minor, the individual's
parent or guardian. Notwithstanding anything in
this chapter to the contrary, companies offering or
selling health benefits in this state may
otherwise obtain or disclose HIV test results in
accordance with section 23-6-17(a)(3). Nothing in
this chapter shall prohibit that company from
collecting data for statistical purposes so long as the
insured's name is not identified.
(4) Nothing in this
chapter shall be construed to permit any company that offers or sells
health benefits in this state to cancel or refuse to
renew a health benefit, which has not by its
terms lapsed, on the basis of a positive HIV test
result.
(c) (1) There is
established a commission to develop and recommend to the legislature a
risk pool plan under which all insurers issuing health
insurance in the state shall participate and
share a proportion of the risk and cost of insuring
people with HIV.
(2) The commission
consists of eleven (11) members; three (3) of whom shall be
members of the house of representatives, not more than
two (2) from the same political party, to
be appointed by the speaker of the house; two (2) of
whom shall be members of the senate, not
more than one of whom shall be from the same political
party, to be appointed by the president of
the senate; one of whom shall be the director of the
department of health, or his or her designee;
one of whom shall be the director of the department of
business regulation, or his or her designee;
two (2) of whom shall be representatives of the
insurance community, to be appointed by the
governor; and two (2) of whom shall be representatives
of AIDS project
appointed by the governor.
(3) The commission
shall meet at the call of the speaker.
23-6-25.
Alternative test sites. -- The department of health shall
maintain sites for
providing both anonymous and confidential HIV testing,
and HIV counseling and referral. Each
site, funded by the department of health, shall offer
free testing, counseling and referral for
indigent parties and other individuals without health
insurance, offer a sliding scale for payment
for all other individuals and, in the case of
confidential testing, screen for ability to pay through a
third-party insurer. In the case of nonfunded sites for HIV testing, organizations and/or
institutions performing the test shall offer free
testing, counseling and referral for indigent parties
and other individuals without health insurance.
23-6-26.
Laboratory analysis for HIV. -- (a) HIV/AIDS is regarded to
cause significant
morbidity and mortality, can be screened, diagnosed
and treated, and is of major public health
concern, such that surveillance of the disease
occurrence is in the public interest, and therefore
shall be designated as notifiable
and reportable by name.
(b) Under this
provision the following shall be reported:
(1) A diagnosis of
HIV, according to the U.S. Centers for Disease Control and
Prevention case definition of HIV.
(2) A diagnosis of
AIDS, according to the U.S. Centers for Disease Control and
Prevention case definition of AIDS.
(3) A positive ELIZA
result of any HIV test and/or other FDA approved test indicative
of the presence of HIV.
(4) CD4 T-lymphocyte
test results <200 mg degrees l and/or fourteen percent (14%).
(5) A perinatal exposure of a newborn to HIV indicated by two (2)
positive PCR tests;
<18 months; and/or other U.S. Food and Drug
Administration approved tests that indicate the
presence of HIV in pediatric cases.
(6) Other U.S. Food
and Drug Administration approved tests indicative of the presence
of HIV/AIDS, as approved by the department.
(c) All biological
samples or specimens taken from
purpose of performing laboratory analysis for the
detection of antibody to human
immunodeficiency virus (HIV), by or under the
direction or order of any physician licensed to
practice medicine in this state, or on order of any
duly licensed health care provider shall be sent
to the
those HIV tests performed in a hospital laboratory.
Hospitals shall forward all positive HIV test
results to the department of health. The department of
health laboratory shall conduct all
confirmatory testing for HIV/AIDS; exceptions, for
alternative testing methods, may be granted
through written approval by the department of health.
(d) Except in the
case of anonymous testing, a physician or laboratory or duly licensed
health care provider providing samples or specimens
for HIV-testing, or results of HIV tests to
the department, shall include the name of the patient.
(e) Any HIV cases
reported in the previous code based system, shall remain in a code
based data set. The department of health shall only
use and require HIV name case reports
submitted after the enactment of this law.
(f) In addition to,
and separate from, the requirement of subdivision 23-6-26(b)(4), all
HIV CD4 T-lymphocyte test results and all HIV viral
load detection test results, detectable and
nondetectable, shall be reported to the department of health
through a department designed
reporting system that uses a nonname
based code and contains no patient identifying information.
These reports may be used by the department to improve
the clinical progress of patients through
contact with their physicians, and to use the
aggregate information collected to develop and
improve prevention programs and create better access
to care.
23-6-27.
Reporting of HIV/AIDS and perinatal exposure of
newborns. -- (a) The
following persons shall report information required by
this section to the department's HIV/AIDS
surveillance team:
(1) A
physician/health care provider who diagnoses or treats HIV/AIDS;
(2) The
administrator of a health care facility as defined in
chapter 23-17 who diagnoses or treats HIV/AIDS; or
(3) The
administrator of a prison in which there is an HIV/AIDS infected person or
perinatal exposure to HIV/AIDS.
Reports provided
under this section shall specify the infected person's name, as well as
all information required on the official department
HIV Case Report Form.
(b) Any high
managerial agent who is responsible for the administration of a clinical or
hospital laboratory, blood bank, mobile unit, or other
facility in which a laboratory examination
of any specimen derived from a human body yields serological,
or other evidence of HIV/AIDS,
including perinatal exposure
to HIV/AIDS shall notify the department in a timely manner as
stipulated in the rules promulgated by the department.
Reports provided under this section shall
specify the name as well as all information indicated
on the official department HIV Case Report
Form.
(c) Reports as
required by this section shall only be made if confirmed with a Western
Blot or other FDA approved confirmatory test.
(1) All facilities
obtaining blood from human donors for the purpose of transfusion or
manufacture of blood products shall report HIV/AIDS
consistent with this section.
(2) Any laboratory
that processes specimens shall permit the department to examine the
records of said laboratory, facility, or office in
order to evaluate compliance with this section.
(d) Perinatal HIV/AIDS exposure reporting shall be made to the
department regardless
of confirmatory testing.
(e) Reports required
by this section shall be mailed within forty-eight (48) hours of
diagnosis or treatment, to the department using a
designated envelope that shall be provided by
the department's HIV/AIDS Surveillance Team. Any other
reporting method shall be approved in
advance by the department.
(f) Nothing in this
section shall preclude the performance of anonymous HIV/AIDS
testing.
SECTION 11. Section 42-51-9 of the General Laws in Chapter 42-51 entitled
"Governor's Commission on Disabilities" is hereby amended to read as follows:
42-51-9.
Definitions. -- The following words and terms, unless the context
clearly
indicates a different meaning, shall have the
following meanings:
(1) "People with
disabilities" or "individuals with disabilities" means any
person who:
(i)
Has a physical or mental impairment that substantially limits one or more of
the
person's major life activities;
(ii) Has a record of
that impairment; or
(iii) Is regarded as
having that impairment.
(2) "Federal and
state laws protecting the rights of individuals with disabilities" means,
but is not limited to, the Americans with Disabilities
Act of 1990, 42 U.S.C. section 12101 et
seq.; Title V of the Rehabilitation Act of 1973, 29
U.S.C. section 794; R.I. Const., art. I, section
2; the provisions of chapter 87 of title 42 and
sections 23-6-22 23-6.3-11, 37-8-15, 37-8-15.1 and
42-46-13.
(3) "State
agency" means any department, division, agency, commission, board, office,
bureau, council, or authority, either branch of the
or any committee thereof, or any other agency that is
in any branch of
government and which exercises governmental functions.
(4) "Coordinating
compliance" means the authority to:
(i)
Issue guidelines, directives, or instructions that are necessary to effectuate
compliance
with federal and state laws protecting the rights of
individuals with disabilities;
(ii) Establish a
grievance procedure to promptly and equitably resolve complaints of
noncompliance with federal and state laws protecting
the rights of individuals with disabilities
involving state agencies, including the power to
investigate possible discrimination and eliminate
unlawful practices by informal methods of conference,
conciliation, and persuasion;
(iii) Initiate
complaints against any state agency that willfully fails to comply with
federal and state laws protecting the rights of
individuals with disabilities to the appropriate state
or federal agency; and
(iv) Develop, make
periodic revisions to, and oversee the implementation of a transition
plan for the removal of environmental and
communication barriers in state-owned facilities.
(5) "Providing
technical assistance to public and private agencies, businesses, and
citizens on complying with federal and state laws
protecting the rights of individuals with
disabilities" means information dissemination and
training designed to encourage the voluntary
compliance with laws protecting the rights of
individuals with disabilities; conducting disability
accessibility surveys and providing advice on how to
overcome any barriers to accessibility; and a
mediation service to assist parties who voluntarily
chose to utilize that service to resolve
allegations of discrimination on the basis of
disability.
(6) "Promoting on
behalf of the people with disabilities and assuring, on behalf of the
state, that people with disabilities are afforded the
opportunities to exercise all of the rights and
responsibilities accorded to citizens of this
state" means the authority to act and appear on behalf
of the people with disabilities to present evidence
and make arguments before any federal, state or
local agency or public body regarding matters pending
before that agency or public body that
may have an adverse effect on persons with
disabilities.
SECTION
12. This act shall take effect on July 1, 2009.
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LC00584/SUB B/2
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