PRINTER'S NO. 1231
No. 1113 Session of 1993
INTRODUCED BY BARLEY, BUNT, CLYMER, BOYES, FAIRCHILD, SCHEETZ, HERMAN, KENNEY, RAYMOND, M. N. WRIGHT, NICKOL, TIGUE, NYCE, NAILOR, BROWN, CORNELL, WOGAN, HERSHEY, SCHULER, SAURMAN, DEMPSEY, ROHRER, PITTS, LEH, STERN, MILLER, FICHTER, COLAIZZO, MASLAND, GODSHALL, WAUGH, E. Z. TAYLOR, TRELLO, HARLEY, OLASZ, FARGO, DeLUCA, ADOLPH, CLARK, STABACK, COLAFELLA AND TOMLINSON, APRIL 19, 1993
REFERRED TO COMMITTEE ON HEALTH AND WELFARE, APRIL 19, 1993
AN ACT 1 Amending the act of November 29, 1990 (P.L.585, No.148), 2 entitled "An act providing for confidentiality of certain 3 records; providing for the authorized sharing of certain 4 information; providing for written consent prior to an HIV- 5 related test, with certain exceptions; providing for civil 6 immunity for certain licensed physicians; providing for 7 protective procedures and equipment; and creating a civil 8 cause of action," further providing for intent and consent to 9 testing; and making repeals. 10 The General Assembly of the Commonwealth of Pennsylvania 11 hereby enacts as follows: 12 Section 1. Section 2(c) of the act of November 29, 1990 13 (P.L.585, No.148), known as the Confidentiality of HIV-Related 14 Information Act, is amended to read: 15 Section 2. Legislative intent. 16 * * * 17 (c) Intent.--[It is the intent of the General Assembly to 18 promote confidential testing on an informed and voluntary basis 19 in order to encourage those most in need to obtain testing and
1 appropriate counseling.] It is the intent of the General 2 Assembly to provide for the confidentiality of HIV-related 3 information in order to encourage those at risk to obtain 4 testing and treatment. It is the further intent to allow 5 physician testing for HIV under the same circumstances 6 physicians would test for other communicable diseases in order 7 to encourage early detection, treatment and prevention. 8 * * * 9 Section 2. The definitions of "first responder," 10 "significant exposure" and "source patient" in section 3 of the 11 act are repealed. 12 Section 3. Section 5 of the act is amended to read: 13 Section 5. Consent to HIV-related test. 14 [(a) Consent.--Except as provided in section 6 with respect 15 to the involuntary testing of a source patient, no HIV-related 16 test shall be performed without first obtaining the informed 17 written consent of the subject. Any consent shall be preceded by 18 an explanation of the test, including its purpose, potential 19 uses, limitations and the meaning of its results. 20 (b) Pretest counseling.--No HIV-related test may be 21 performed without first making available to the subject 22 information regarding measures for the prevention of, exposure 23 to and transmission of HIV. 24 (c) Confirmatory test.--No test result shall be determined 25 as positive, and no positive test result shall be revealed, 26 without confirmatory testing if it is required by generally 27 accepted medical standards. 28 (d) Notice of test result.--The physician who ordered the 29 test, the physician's designee or a successor in the same 30 relationship to the subject shall make a good faith effort to 19930H1113B1231 - 2 -
1 inform the subject of the result regardless of whether the 2 result is positive or negative. 3 (e) Post-test counseling.-- 4 (1) No positive or negative 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 (i) The significance of the test results. 9 (ii) Measures for the prevention of the transmission 10 of HIV. 11 (iii) The benefits of locating and counseling any 12 individual by whom the subject may have been exposed to 13 HIV and the availability of any services with respect to 14 locating and counseling such individual. 15 (2) No positive test result shall be revealed to the 16 subject without, in addition to meeting the requirements of 17 paragraph (1), also affording the subject the immediate 18 opportunity for individual, face-to-face counseling about: 19 (i) The availability of any appropriate health care 20 services, including mental health care, and appropriate 21 social and support services. 22 (ii) The benefits of locating and counseling any 23 individual who the infected subject may have exposed to 24 HIV and the availability of any services with respect to 25 locating and counseling such individual. 26 (f) Blinded HIV-related testing.--Blinded HIV-related 27 testing for purposes of research performed in a manner by which 28 the identity of the test subject is not known and may not be 29 retrieved by the researcher is prohibited, unless reviewed and 30 approved by the institutional review board established by the 19930H1113B1231 - 3 -
1 department except for testing pursuant to research approved by 2 an institutional review board prior to the effective date of 3 this act. The department shall make a good faith effort to 4 maintain records of the results of blinded HIV tests performed 5 in this Commonwealth and shall, on a yearly basis, forward 6 information concerning the results to the appropriate committees 7 of the General Assembly. 8 (g) Exceptions.-- 9 (1) The provisions of subsections (a), (b), (c), (d) and 10 (e) shall not apply to the following: 11 (i) The performance of an HIV-related test on a 12 cadaver by a health care provider which procures, 13 processes, distributes or uses a human body or a human 14 body part, tissue or semen for use in medical research, 15 therapy or transplantation. 16 (ii) The performance of an HIV-related test for the 17 purpose of medical research not prohibited by subsection 18 (f) if the testing is performed in a manner by which the 19 identity of the test subject is not known and may not be 20 retrieved by the researcher. 21 (iii) The performance of an HIV-related test when 22 the test result of a subject is required by an insurer 23 for underwriting purposes. However, the insurer shall 24 satisfy the requirements of subsection (h). 25 (2) The provisions of subsections (a), (b) and (c) shall 26 not apply to the performance of an HIV-related test in a 27 medical emergency when the subject of the test is unable to 28 grant or withhold consent and the test result is medically 29 necessary for diagnostic purposes to provide appropriate 30 emergency care to the subject. 19930H1113B1231 - 4 -
1 (3) The provisions of subsections (d) and (e) shall not 2 apply when a negative HIV-related test result is secured by a 3 subject who has taken the test solely to satisfy a 4 requirement for donating a human body or human body part, 5 tissue or semen for use in medical research, therapy, 6 transfusion or transplantation. However, if the subject 7 requests identification of a negative test result, the test 8 result shall be provided to the subject in accordance with 9 subsection (d). 10 (h) Requirements applicable to insurers.-- 11 (1) No HIV-related test shall be performed without first 12 obtaining the informed written consent of the subject. Any 13 consent shall be preceded, in writing, by: 14 (i) A disclosure of the effects of the test result 15 on the approval of the application, or the risk 16 classification of the subject. 17 (ii) Information explaining AIDS, HIV and the HIV- 18 related test. 19 (iii) A description of the insurer's confidentiality 20 standards. 21 (iv) A statement that, because of the serious nature 22 of HIV-related illnesses, the subject may desire to 23 obtain counseling before undergoing the HIV-related test. 24 (v) Information concerning the availability of 25 alternative HIV-related testing and counseling provided 26 by the department and local health departments, and the 27 telephone number of the department from which the subject 28 may secure additional information on such testing and 29 counseling. 30 (2) The insurer is required to disclose to the subject a 19930H1113B1231 - 5 -
1 negative test result on an HIV-related test only if the 2 subject requests notification. 3 (3) The insurer shall not disclose to the subject of an 4 HIV-related test a positive test result. On the form on which 5 the insurer secures the subject's written consent to the HIV- 6 related test, the subject shall be required to designate to 7 whom a positive test result shall be disclosed. The subject 8 shall have the choice of designating a physician, the 9 department or a local health department, or a local 10 community-based organization from a list of such 11 organizations prepared by the department. The insurer shall 12 notify the designee of a positive test result. 13 (4) A positive test result shall be disclosed to the 14 subject, by the designee, in accordance with subsections (d) 15 and (e). The department may elect to have its disclosure 16 responsibilities satisfied by a local health department.] 17 (a) Consent requirements applicable to insurers.-- 18 (1) No HIV-related test shall be performed without first 19 obtaining the informed written consent of the subject. Any 20 consent shall be preceded in writing by: 21 (i) A disclosure of the effects of the test result 22 on the approval of the application, or the risk 23 classification of the subject. 24 (ii) Information explaining aids, HIV and the HIV- 25 related test. 26 (iii) A description of the insurer's confidentiality 27 standards. 28 (iv) A statement that, because of the serious nature 29 of HIV-related illnesses, the subject may desire to 30 obtain counseling before undergoing the HIV-related test. 19930H1113B1231 - 6 -
1 (v) Information concerning the availability of 2 alternative HIV-related testing and counseling provided 3 by the department and local health departments, and the 4 telephone number of the department from which the subject 5 may secure additional information on such testing and 6 counseling. 7 (2) The insurer is required to disclose to the subject a 8 negative test result on an HIV-related test only if the 9 subject requests notification. 10 (3) The insurer shall not disclose to the subject of an 11 HIV-related test a positive test result. On the form on which 12 the insurer secures the subject's written consent to the HIV- 13 related test, the subject shall be required to designate to 14 whom a positive test result shall be disclosed. The subject 15 shall have the choice of designating a physician, the 16 department or a local health department, or a local 17 community-based organization from a list of such 18 organizations prepared by the department. The insurer shall 19 notify the designee of a positive test result. 20 (b) Consent requirements applicable to physicians.--A 21 physician involved in the care of a patient who concludes in his 22 reasonable medical judgment that a blood test is appropriate for 23 the care of the patient, the protection of the public or of 24 health care workers may perform or order an HIV test and the 25 informed consent of the patient shall be deemed given. 26 Section 4. Section 6 of the act is repealed. 27 Section 5. This act shall take effect in 60 days. B8L35DGS/19930H1113B1231 - 7 -