PRINTER'S NO. 1435
No. 1163 Session of 1989
INTRODUCED BY PETERSON, WILLIAMS, AFFLERBACH, GREENWOOD, O'PAKE,
SHUMAKER, REIBMAN, PUNT, BRIGHTBILL, STEWART, STOUT, DAWIDA,
SALVATORE, FUMO, CORMAN, REGOLI, JONES, MADIGAN, WILT,
GREENLEAF, HELFRICK, ROCKS, BAKER, FATTAH, PECORA, MELLOW,
HOPPER AND LOEPER, JULY 7, 1989
REFERRED TO PUBLIC HEALTH AND WELFARE, JULY 7, 1989
AN ACT
1 Providing for confidentiality of certain records; providing for
2 the authorized sharing of certain information; providing for
3 written consent prior to an HIV-related test; providing for
4 civil immunity for certain licensed physicians; establishing
5 a criminal penalty, creating a civil cause of action; and
6 making a repeal.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Short title.
10 This act shall be known and may be cited as the
11 Confidentiality of HIV-Related Information Act.
12 Section 2. Legislative intent.
13 (a) Findings.--The General Assembly finds that the incidence
14 of acquired immune deficiency syndrome (AIDS) is increasing in
15 this Commonwealth at a significant rate. Controlling the
16 incidence of this disease is aided by providing testing and
17 counseling activities for those persons who are at risk of
18 exposure to or who are carrying the human immunodeficiency virus
1 (HIV), which is the causative agent of AIDS. Testing and
2 counseling are promoted by establishing confidentiality
3 requirements which protect individuals from inappropriate
4 disclosure and subsequent misuse of confidential HIV-related
5 information. The General Assembly also finds that, since certain
6 specific behaviors place a person at risk of contracting the
7 virus, testing and counseling of persons who are at risk of
8 exposure to the virus makes an efficient use of available
9 funding.
10 (b) Intent.--It is the intent of the General Assembly to
11 promote confidential testing on an informed and voluntary basis
12 in order to encourage those most in need to obtain testing and
13 appropriate counseling.
14 Section 3. Definitions.
15 The following words and phrases when used in this act shall
16 have the meanings given to them in this section unless the
17 context clearly indicates otherwise:
18 "AIDS." Acquired immune deficiency syndrome, as defined by
19 the CDC.
20 "CDC." The Centers for Disease Control of the United States
21 Public Health Service.
22 "Confidential HIV-related information." Any information
23 which is in the possession of a person who provides one or more
24 health or social services or who obtains the information
25 pursuant to a release of confidential HIV-related information
26 and which concerns whether an individual has been the subject of
27 an HIV-related test, or has HIV, HIV-related illness or AIDS; or
28 any information which identifies or reasonably could identify an
29 individual as having one or more of these conditions, including
30 information pertaining to the individual's contacts.
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1 "Contact." A sex-sharing or needle-sharing partner of the
2 subject.
3 "HIV." The human immunodeficiency virus.
4 "HIV-related test." Any laboratory test or series of tests
5 for any virus, antibody, antigen or etiologic agent whatsoever
6 thought to cause or to indicate the presence of AIDS.
7 "Individual health care provider." A physician, nurse,
8 emergency medical services worker, chiropractor, psychologist,
9 nurse-midwife, physician assistant, dentist or other person
10 providing medical, nursing, drug or alcohol rehabilitation
11 services or other health care services of any kind.
12 "Institutional health care provider." A hospital, nursing
13 home, hospice, personal care boarding home, clinic, blood bank,
14 plasmapheresis or other blood product center, organ or tissue
15 bank, sperm bank, clinical laboratory, residential or outpatient
16 drug and alcohol rehabilitation service, or any health care
17 institution required to be licensed in this Commonwealth.
18 "Subject." An individual or a guardian of the person of that
19 individual.
20 Section 4. Consent to HIV-related test.
21 (a) Consent.--No HIV-related test shall be performed without
22 first obtaining the informed written consent of the subject. Any
23 consent shall be preceded by an explanation of the test,
24 including its purpose, potential uses, limitations and the
25 meaning of its results.
26 (b) Pretest counseling.--No HIV-related test may be
27 performed without first making available to the subject
28 information regarding measures for the prevention of, exposure
29 to and transmission of HIV.
30 (c) Confirmatory testing.--No test result shall be
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1 determined as positive, and no positive test result shall be
2 revealed, without confirmatory testing if it is required by
3 generally accepted medical standards.
4 (d) Posttest counseling.--No positive test result shall be
5 revealed to the subject without affording the subject the
6 immediate opportunity for individual, face-to-face counseling
7 about:
8 (1) The significance of the test results.
9 (2) Measures for the prevention of the transmission of
10 HIV.
11 (3) The availability of any appropriate health care
12 services, including mental health care, and appropriate
13 social and support services.
14 (4) The benefits of locating and counseling any
15 individual by whom the infected individual may have been
16 exposed to HIV and any individual whom the infected
17 individual may have exposed to HIV.
18 (5) The availability of any services with respect to
19 locating and counseling any individual described in paragraph
20 (4).
21 (e) Exceptions to consent requirement.--
22 (1) The provisions of subsections (a) and (b) shall not
23 apply to the performance of an HIV-related test by an
24 individual or institutional health care provider which
25 procures, processes, distributes or uses a human body or a
26 human body part, tissue or semen for use in medical research,
27 therapy or transplantation.
28 (2) The provisions of this section shall not apply to
29 the performance of an HIV-related test for the purpose of
30 medical research if the testing is performed in a manner by
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1 which the identity of the test subject is not known and may
2 not be retrieved by the researcher.
3 (3) The provisions of this section shall not apply to
4 the performance of an HIV-related test in a medical emergency
5 when the subject of the test is unable to grant or withhold
6 consent and the test result is medically necessary for
7 diagnostic purposes to provide appropriate emergency care to
8 the subject, except that posttest counseling shall be
9 required.
10 Section 5. Confidentiality of records.
11 (a) Limitations on disclosure.--No person who obtains
12 confidential HIV-related information in the course of providing
13 any health or social service or pursuant to a release of
14 confidential HIV-related information under subsection (c) may
15 disclose or be compelled to disclose the information, except to
16 the following persons:
17 (1) The subject.
18 (2) Any person specifically designated in a written
19 consent as provided for in subsection (c).
20 (3) An individual or institutional health care provider
21 or their authorized agent or employee, provided that the
22 person is:
23 (i) involved in the medical care or treatment of the
24 subject; or
25 (ii) a peer review organization or committee as
26 defined in the act of July 20, 1974 (P.L.564, No.193),
27 known as the Peer Review Protection Act.
28 (4) Individual health care providers involved in the
29 care of the individual with an AIDS-related condition or a
30 positive test, when knowledge of the condition or test result
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1 is necessary to provide emergency care or treatment
2 appropriate to the individual.
3 (5) The Department of Health and the CDC, in accordance
4 with reporting requirements.
5 (6) A person allowed access to the information by a
6 court order issued pursuant to section 6.
7 (b) Subsequent disclosure prohibited.--Notwithstanding the
8 provisions of section 15 of the act of April 23, 1956 (1955
9 P.L.1510, No.500), known as the Disease Prevention and Control
10 Law of 1955, no person to whom confidential HIV-related
11 information has been disclosed under this act may disclose that
12 information to another person, except as authorized by this act.
13 (c) Required elements of written consent to disclosure.--A
14 written consent to disclosure of confidential HIV-related
15 information shall include:
16 (1) The specific name or general designation of the
17 person permitted to make the disclosure.
18 (2) The name or title of the individual, or the name of
19 the organization to which the disclosure is to be made.
20 (3) The name of the subject.
21 (4) The purpose of the disclosure.
22 (5) How much and what kind of information is to be
23 disclosed.
24 (6) The signature of the subject.
25 (7) The date on which the consent is signed.
26 (8) A statement that the consent is subject to
27 revocation at any time except to the extent that the person
28 who is to make the disclosure has already acted in reliance
29 on it.
30 (9) The date, event or condition upon which the consent
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1 will expire, if not earlier revoked.
2 (d) Expired, deficient or false consent.--A disclosure may
3 not be made on the basis of a consent which:
4 (1) has expired;
5 (2) on its face substantially fails to conform to any of
6 the requirements set forth in subsection (c);
7 (3) is known to have been revoked; or
8 (4) is known by the person holding the information to be
9 materially false.
10 (e) Notice to accompany disclosure.--Each disclosure made
11 with the subject's written consent must be accompanied by the
12 following written statement:
13 This information has been disclosed to you from records
14 protected by Pennsylvania law. Pennsylvania law prohibits
15 you from making any further disclosure of this
16 information unless further disclosure is expressly
17 permitted by the written consent of the person to whom it
18 pertains or is authorized by the Confidentiality of HIV-
19 Related Information Act. A general authorization for the
20 release of medical or other information is not sufficient
21 for this purpose.
22 (f) Duty to establish written procedures.--An institutional
23 health care provider that has access to or maintains
24 individually identifying confidential HIV-related information
25 shall establish written procedures for confidentiality and
26 disclosure of the records which are in accordance with the
27 provisions of this act.
28 Section 6. Court order.
29 (a) Findings.--No court may issue an order to allow access
30 to confidential HIV-related information unless the court finds,
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1 upon application, that one of the following conditions exists:
2 (1) The person seeking the information has demonstrated
3 a compelling need for that information which cannot be
4 accommodated by other means.
5 (2) The person seeking to disclose the information has a
6 compelling need to do so.
7 (b) Compelling need.--In assessing compelling need, the
8 court shall weigh the need for disclosure against the privacy
9 interest of the individual and the public interests which may be
10 harmed by disclosure.
11 (c) Pleadings.--Pleadings pertaining to disclosure of the
12 information shall substitute a pseudonym for the true name of
13 the subject of the record. Disclosure to the parties of the
14 subject's true name shall be communicated confidentially in
15 documents not filed with the court.
16 (d) Notice.--Before granting an order for disclosure, the
17 court shall provide the subject of the disclosure with notice
18 and a reasonable opportunity to participate in the proceeding if
19 the subject is not already a party.
20 (e) In camera proceedings.--Court proceedings as to the
21 disclosure of the information shall be conducted in camera,
22 unless the subject agrees to a hearing in open court or unless
23 the court determines that a public hearing is necessary to the
24 public interest and the proper administration of justice.
25 (f) Safeguards against disclosure.--Upon the issuance of an
26 order to disclose the information, the court shall impose
27 appropriate safeguards against unauthorized disclosure which
28 shall specify the following:
29 (1) The particular information which is essential to
30 accommodate the need of the party seeking disclosure.
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1 (2) The persons who may have access to the information.
2 (3) The purposes for which the information will be used.
3 (4) The appropriate prohibitions on future disclosure as
4 provided for in section 5.
5 Section 7. Civil immunity for certain physicians.
6 (a) Permissible disclosure.--Notwithstanding the provisions
7 of section 5, a physician may disclose confidential HIV-related
8 information if all of the following conditions are met:
9 (1) The disclosure is made to a known contact of the
10 subject.
11 (2) The physician reasonably believes disclosure is
12 medically appropriate, and there is a significant risk of
13 future infection to the contact.
14 (3) The physician has counseled the subject regarding
15 the need to notify the contact, and the physician reasonably
16 believes the subject will not inform the contact or abstain
17 from sexual or needle-sharing behavior which poses a
18 significant risk of infection to the contact.
19 (4) The physician has informed the subject of his intent
20 to make such disclosure.
21 (b) Subject not to be identified.--When making such
22 disclosure to a contact, the physician shall not disclose the
23 identity of the subject or any other contact. Disclosure shall
24 be made in person except where circumstances reasonably prevent
25 doing so.
26 (c) Duties relating to contacts.--A physician shall have no
27 duty to identify, locate or notify any contact, and no cause of
28 action shall arise for nondisclosure, or for disclosure in
29 conformity with this section.
30 Section 8. Civil cause of action.
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1 Any person aggrieved by a violation of this act shall have a
2 cause of action against the person who committed such violation
3 and may recover compensatory damages.
4 Section 9. Separate violations.
5 Each disclosure of confidential HIV-related information in
6 violation of this act or each HIV-related test conducted in
7 contravention of this act is separate for purposes of civil
8 liability.
9 Section 10. Repeals.
10 The act of April 23, 1956 (1955 P.L.1510, No.500), known as
11 the Disease Prevention and Control Law of 1955, is repealed
12 insofar as it is inconsistent with this act.
13 Section 11. Effective date.
14 This act shall take effect in 60 days.
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