HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/STATE/PENN1.ASC

Text File | 1993-01-14 | 30KB | 714 lines

/* PENNSYLVANIA's AIDS law is entitled the Confidentiality of HIV
Related Information Act. */



 7602.  Legislative intent

(a)  Findings.-The General Assembly finds that the incidence of
acquired immune deficiency syndrome (AIDS) is increasing in this
Commonwealth at a significant rate. Controlling the incidence of
this disease is aided by providing testing and counseling
activities for those persons who are at risk of exposure to or
who are carrying the human immunodeficiency virus (HIV), which is
the causative agent of AIDS. Testing and counseling are promoted
by establishing confidentiality requirements which protect
individuals from inappropriate disclosure and subsequent misuse
of confidential HIV-related information.  The General Assembly
also finds that, since certain specific behaviors place a person
at risk of contracting the virus, testing and counseling of
persons who are at risk of exposure to the virus makes an
efficient use of available funding.

(1)) Further findings.-The General Assembly further finds that
individual health care providers are increasingly concerned about
occupational exposure to human immunodeficiency virus (HIV), the
causative agent for acquired immune deficiency syndrome AIDS).
Due to the nature of their work, individual health care providers
and first responders frequently come into contact with the blood
and/or body fluids of individuals whose HIV infection status is
not known. Regardless of the use of universal precautions to
prevent HIV transmission between patients and individual health
care providers, there will be instances of significant exposure
to the blood and/or body fluids of patients.

(c) Intent.-It is the intent of the General Assembly to promote
confidential testing on an informed and voluntary basis in order
to encourage those most in need to obtain testing and appropriate
counseling.

(d) Further intent.-It is the further intent of the General Assem
bly to provide a narrow exposure notification and information
mechanism for individual health care providers or first
responders, who experience a significant exposure to a patient's
blood and/or body fluids, to learn of a patient's HIV infection
status and thereby obtain the means to make informed decisions
with respect to modes and duration of therapy as well as measures
to reduce the likelihood of transmitting an infection to others.



 7603.  Definitions

The following words and phrases when used in this act shall have
the meanings given to them in this section unless the context
clearly indicates otherwise:

"AIDS." Acquired immune deficiency syndrome.

"Available blood." Blood that is in the possession of the institu
tional health care provider or the source patient's physician
pursuant to a valid authorization.

"CDC."  The Centers for Disease Control of the United States
Public Health Service.

"Confidential HIV-related information."  Any information which is
in the possession of a person who provides one or more health or
social services or who obtains the information pursuant to a
release of confidential HIV-related information and which con
cerns whether an individual has been the subject of an HIV-
related test, or has HIV, HIV-related illness or AIDS; or any
information which identifies or reasonably could identify an
individual as having one or more of these conditions, including
information pertaining to the individual's contacts.

"Contact." A sex-sharing or needle-sharing partner of the
subject.

"Department."  The Department of Health of the Commonwealth.

"First responder." Police, firefighters, rescue personnel or any
other person who provides emergency response, first aid or other
medically related assistance either in the course of their
occupational duties or as a volunteer, which may expose them to
contact with a person's bodily fluids.

"Health care provider."  An individual or institutional health
care provider.

"HIV." The human immunodeficiency virus.

"HIV-related test." Any laboratory test or series of tests for
any virus, antibody, antigen or etiologic agent whatsoever
thought to cause or to indicate the presence of HIV infection.

"Home care agency." Any organization or part of an organization
which is staffed and equipped to provide in-home health care
services. The term includes, but is not limited to, Pennsylvania-
licensed home health agencies, home health aide agencies or
private duty care agencies.

"Individual health care provider." A physician, nurse, emergency
medical services worker, chiropractor, optometrist, psychologist
nurse-midwife, physician assistant, dentist or other person,
including a professional corporation or partnership, providing
medical, nursing, drug or alcohol rehabilitation services, mental
health services, other health care services or an employee or
agent of such individual or an institutional health care
provider.

"Institutional health care provider." A hospital, nursing home,
hospice, clinic, blood bank, plasmapheresis or other blood
product center, organ or tissue bank, sperm bank, clinical
laboratory, residential or outpatient drug and alcohol
rehabilitation service, mental health facility, mental
retardation facility, home care agency as defined in this act, or
any health care institution required to be licensed in this
Commonwealth whether privately or publicly operated.

"Insurer."  Any insurance company, association or exchange
authorized to do business in this Commonwealth under the act of
May 17, 1921 (P.L. 682, No. 284), known as The Insurance Company
Law of 1921, any entity subject to 40 Pa.C.S. Ch. 61 (relating to
hospital plan corporations) or 63 (relating to professional
health services plan corporations), the act of December 29, 1972
(P.L. 1701, No. 364), known as the Health Maintenance
Organization Act, or the act of July 29, 1977 (P.L. 105, No. 38),
known as the Fraternal Benefit Society Code.

"Significant exposure." Direct contact with blood or body fluids
of a patient in a manner which, according to the most current
guidelines of the Centers for Disease Control, is capable of
transmitting human immunodeficiency virus, including, but not
limited to, a percutaneous injury (e.g., a needle stick or cut
with a sharp object), contact of mucous membranes or contact of
skin (especially when the exposed skin is chapped, abraded or
afflicted with dermatitis) or if the contact is prolonged or
involves an extensive area.

"Source patient." Any person whose body fluids have been the
source of a significant exposure to an individual health care
provider.

"Subject."  An individual or a guardian of the person of that
individual.

"Substitute decisionmaker." Any guardian or person who by law or
medical practice is authorized to consent on behalf of an
incompetent person for medical treatment.



 7604.  Prevention of transmission of infectious diseases

The department shall, by regulation, require the use of
protective measures and equipment by individuals, persons and
institutions not covered by regulations promulgated by the
Occupational Safety and Health Administration governing such
protective measures and equipment.  The department shall develop
such regulations pursuant to guidelines established by the CDC.
For health care providers covered by the provisions of the
Occupational Safety and Health Administration governing such
protective measures and equipment, the department shall encourage
compliance with approved standards. This section shall not
preclude the department from exercising rulemaking authority
granted under any other act.



 7605.  Consent to HIV-related test

(a) Consent.-Except as provided in section 6 with respect to the
involuntary testing of a source patient, no HIV-related test
shall be performed without first obtaining the informed written
consent of the subject. Any consent shall be preceded by an
explanation of the test, including its purpose, potential uses,
limitations and the meaning of its results.

(b) Pretest counseling.-No HIV-related test may be performed
without first making available to the subject information
regarding measures for the prevention of, exposure to and
transmission of HIV.

(c) Confirmatory test.-No test result shall be determined as
positive, and no positive test result shall be revealed, without
confirmatory testing if it is required by generally accepted
medical standards.

(d) Notice of test result.-The physician who ordered the test,
the physician's designee or a successor in the same relationship
to the subject shall make a good faith effort to inform the
subject of the result regardless of whether the result is
positive or negative.

(e) Post-test counseling.-

(1)  No positive or negative test result shall be revealed to the
subject without affording the subject the immediate opportunity
for individual, face-to-face counseling about:

(i)  The significance of the test results.

(ii)   Measures for the prevention of the transmission of HIV

(iii) The benefits of locating and counseling any individual by
whom the subject may have been exposed to HIV and the
availability of any services with respect to locating and counsel
ing such individual.

(2)  No positive test result shall be revealed to the subject
without, in addition to meeting the requirements of paragraph
(1), also affording the subject the immediate opportunity for
individual, face-to-face counseling about:

(i)  The availability of any appropriate health care services,
including mental health care, and appropriate social and support
services.

(ii)   The benefits of locating and counseling any individual who
the infected subject may have exposed to HIV and the availability
of any services with respect to locating and counseling such
individual.

(f) Blinded HIV-related testing. - Blinded HIV-related testing
for purposes of research performed in a manner by which the
identity of the test subject is not known and may not be
retrieved by the researcher is prohibited, unless reviewed and
approved by the institutional review board established by the
department except for testing pursuant to research approved by an
institutional review board prior to the effective date of this
act. The department shall make a good faith effort to maintain
records of the results of blinded HIV tests performed in this
Commonwealth and shall, on a yearly basis, forward information
concerning the results to the appropriate committees of the
General Assembly.

(g) Exceptions.-

(1)  The provisions of subsections (a), (b), (c), (d) and (e)
shall not apply to the following:

(i)    The performance of an HIV-related test on a cadaver by a
health care provider which procures, processes, distributes or
uses a human body or a human body part, tissue or semen for use
in medical research, therapy or transplantation.

(ii)   The performance of an HIV-related test for the purpose of
medical research not prohibited by subsection (f) if the testing
is performed in a manner by which the identity of the test
subject is not known and may not be retrieved by the researcher.

(iii) The performance of an HIV-related test when the test result
of a subject is required by an insurer for underwriting purposes.
However, the insurer shall satisfy the requirements of subsection
(h).

(2)  The provisions of subsections (a), (b) and (c) shall not
apply to the performance of an HIV-related test in a medical
emergency when the subject of the test is unable to grant or
withhold consent and the test result is medically necessary for
diagnostic purposes to provide appropriate emergency care to the
subject.

(3)  The provisions of subsections (d) and (e) shall not apply
when a negative HIV-related test result is secured by a subject
who has taken the test solely to satisfy a requirement for
donating a human body or human body part, tissue or semen for use
in medical research, therapy, transfusion or transplantation. How
ever, if the subject requests identification of a negative test
result, the test result shall be provided to the subject in
accordance with subsection (d).

(h) Requirements applicable to insurers.-

(1)  No HIV-related test shall be performed without first obtain
ing the informed written consent of the subject.  Any consent
shall be preceded, in writing, by:

(i) A disclosure of the effects of the test result on the
approval of the application, or the risk classification of the
subject.

(ii) Information explaining AIDS, HIV and the HIV-related test.

(iii) A description of the insurer's confidentiality standards.

(iv) A statement that, because of the serious nature of HIV
related illnesses, the subject may desire to obtain counseling
before undergoing the HIV-related test.

(v) Information concerning the availability of alternative HIV-
related testing and counseling provided by the department and
local health departments, and the telephone number of the
department from which the subject may secure additional
information on such testing and counseling.

(2)  The insurer is required to disclose to the subject a
negative test result on an HIV-related test only if the subject
requests notification.

(3)  The insurer shall not disclose to the subject of an HIV
related test a positive test result.  On the form on which the
insurer secures the subject's written consent to the HIV-related
test, the subject shall be required to designate to whom a
positive test result shall be disclosed. The subject shall have
the choice of designating a physician, the department or a local
health department, or a local community-based organization from a
list of such organizations prepared by the department.  The
insurer shall notify the designee of a positive test result.

(4)  A positive test result shall be disclosed to the subject, by
the designee, in accordance with subsections (d) and (e). The
department may elect to have its disclosure responsibilities
satisfied by a local health department.



 7606.  Certification of significant exposure and testing proce
dures

(a) Physician's evaluation of significant exposure.-

(1) Whenever an individual health care provider or first
responder experiences an exposure to a patient's blood or bodily
fluids during the course of rendering health care or occupational
services, the individual may request an evaluation of the expo
sure, by a physician, to determine if it is a significant
exposure as defined in this act. No physician shall certify his
own significant exposure or that of any of his employees. Such
requests shall be made within 72 hours of the exposure.

(2) Within 72 hours of the request, the physician shall make
written certification of the significance of the exposure.

(3) If the physician determines that the individual health care
provider or first responder has experienced a significant expo
sure, the physician shall offer the exposed individual the
opportunity to undergo testing, following the procedure outlined
in section 5.

(b)  Opportunity for source patient to consent.

(1) In the event that an exposed individual health care provider
or first responder is certified to have experienced a significant
exposure and has submitted to an HIV-related test, no testing
shall be performed on a source patient's available blood unless
the certifying physician provides a copy of the written certifica
tion of significant exposure to the source patient's physician or
institutional health care provider in possession of the available
blood and the source patient's physician or institutional health
care provider has made a good faith effort to:

(i)  Notify the source patient or substitute decisionmaker of the
significant exposure.

(ii) Seek the source patient's voluntary informed consent to the
HIV-related testing as specified in section 5(a).

(iii) Provide counseling as required under section 5(b).

(2) The source patient's physician or institutional health care
provider that receives a certification of significant exposure
shall begin to comply with the request within 24 hours. If the
source patient's physician or institutional health care provider
is unable to secure the source patient's consent because the
source patient or the source patient's substitute decisionmaker
refuses to grant informed consent or the source patient cannot be
located, the source patient's physician or institutional health
care provider shall arrange for an entry to be placed on the
source patient's medical record to that effect.  If these
procedures are followed and the entry is made on the source
patient's medical record, then HIV-related tests shall be
performed on the source patient's available blood if requested by
the exposed individual health care provider or first responder
who has submitted to an HIV-related test.

(3)  The physician ordering the HIV-related test on a source
patient's available blood on behalf of the source patient's
physician or institutional health care provider shall comply with
section 5(c) through (e).

(4)  The health care provider or first responder shall be
notified of the results of the HIV-related test on the source
patient's blood if the health care provider or first responder's
baseline HIV related test is negative.  Further disclosure of the
test results is prohibited unless authorized under section 7.



 7607.  Confidentiality of records

(a) Limitations on disclosure.-No person or employee, or agent of
such person, who obtains confidential HIV-related information in
the course of providing any health or social service or pursuant
to a release of confidential HIV-related information under subsec
tion (c) may disclose or be compelled to disclose the
information, except to the following persons:

(1)  The subject.

(2)  The physician who ordered the test, or the physician's
designee.

(3)  Any person specifically designated in a written consent as
provided for in subsection (c).

(4)  An agent, employee or medical staff member of a health care
provider, when the health care provider has received confidential
HIV-related information during the course of the subject's
diagnosis or treatment by the health care provider, provided that
the agent, employee or medical staff member is involved in the
medical care or treatment of the subject.  Nothing in this para
graph shall be construed to require the segregation of
confidential HIV-related information from a subject's medical
record.

(5)   A peer review organization or committee as defined in the
act of July 20, 1974 (P.L. 564, No. 193), known as the Peer
Review Protection Act, a nationally recognized accrediting
agency, or as otherwise provided by law, any Federal or State
government agency with oversight responsibilities over health
care providers.

(6)   Individual health care providers involved in the care of
the subject with an HIV-related condition or a positive test,
when knowledge of the condition or test result is necessary to
provide emergency care or treatment appropriate to the
individual; or health care providers consulted to determine
diagnosis and treat ment of the individual.

(7)   An insurer, to the extent necessary to reimburse health
care providers or to make any payment of a claim submitted
pursuant to an insured's policy.

(8)  The department and persons authorized to gather, transmit or
receive vital statistics under the act of June 29, 1953 (P.L.
304, No. 66), known as the Vital Statistics Law of 1953.

(9)  The department and local boards and departments of health,
as authorized by the act of April 23, 1956 (1955 P.L. 1510, No.
500), known as the Disease Prevention and Control Law of 1955.

(10)  A person allowed access to the information by a court order
issued pursuant to section 8.

(11)  A funeral director responsible for the acceptance and
preparation of the deceased subject.

(12)  Employees of county mental health/mental retardation
agencies, county children and youth agencies, county juvenile
probation departments, county or State facilities for delinquent
youth, and contracted residential providers of the above-named
entities receiving or contemplating residential placement of the
subject, who:

(i) generally are authorized to receive medical information; and

(ii) are responsible for ensuring that the subject receives
appropriate health care; and

(iii) have a need to know the HIV-related information in order to
ensure such care is provided.

The above-named entities may release the information to a court
in the course of a dispositional proceeding under 42 Pa.C.S.
6351 (relating to disposition of dependent child) and 6352
(relating to disposition of delinquent child) when it is
determined that such information is necessary to meet the medical
needs of the subject.

(b)  Subsequent disclosure prohibited. - Notwithstanding the
provisions of the Vital Statistics Law of 1953 or section 15 of
the Disease Prevention and Control Law of 1955, no person to whom
confidential HIV-related information has been disclosed under
this act may disclose that information to another person, except
as authorized by this act.

(c) Required elements of written consent to disclosure.-A writ
ten consent to disclosure of confidential HIV-related information
shall include:

(1)   The specific name or general designation of the person
permitted to make the disclosure.

(2)   The name or title of the individual, or the name of the
organization to which the disclosure is to be made.

(3)   The name of the subject.

(4)   The purpose of the disclosure.

(5)   How much and what kind of information is to be disclosed.

(6)   The signature of the subject.

(7)   The date on which the consent is signed.

(8)   A statement that the consent is subject to revocation at
any time except to the extent that the person who is to make the
disclosure has already acted in reliance on it.

(9)   The date, event or condition upon which the consent will
expire, if not earlier revoked.

(d) Expired, deficient or false consent.-A disclosure may not be
made on the basis of a consent which:

(1)   has expired;

(2)   on its face substantially fails to conform to any of the
requirements set forth in subsection (c);

(3)   is known to have been revoked; or

(4)   is known by the person holding the information to be
materially false.

(e) Notice to accompany disclosure.-Each disclosure made with the
subject's written consent must be accompanied by the following
written statement:

This information has been disclosed to you from records protected
by Pennsylvania law.  Pennsylvania law prohibits you from making
any further disclosure of this information unless further
disclosure is expressly permitted by the written consent of the
person to whom it pertains or is authorized by the
Confidentiality of HIV-Related Information Act.  A general
authorization for the release of medical or other information is
not sufficient for this purpose.

(f) Duty to establish written procedures.-An institutional

health care provider that has access to or maintains individually
identifying confidential HIV-related information shall establish
written procedures for confidentiality and disclosure of the
records which are in accordance with the provisions of this act
within 60 days of the effective date of this act.



 7608.  Court order

(a) Order to disclose.-No court may issue an order to allow
access to confidential HIV-related information unless the court
finds, upon application, that one of the following conditions
exists:

(1)  The person seeking the information has demonstrated a
compelling need for that information which cannot be accommodated
by other means.

(2)  The person seeking to disclose the information has a
compelling need to do so.

(b) Order to test and disclose.-No court may order the
performance of an HIV-related test and allow access to the test
result unless the court finds, upon application, that all of the
following conditions exist:

(1)  The individual whose test is sought was afforded informed
consent and pretest counseling procedures required by section
3(a) and (b) and the subject refused to give consent or was not
capable of providing consent.

(2)  The applicant was exposed to a body fluid of the individual
whose test is sought and that exposure presents a significant
risk of exposure to HIV infection. A determination that the
applicant has incurred a significant risk of exposure to HIV
infection must be supported by medical and epidemiologic data
regarding the transmission of HIV, including, if available,
information about the HIV risk status of the source individual
and the circumstances in which the alleged exposure took place.

(3)  The applicant has a compelling need to ascertain the HIV
test result of the source individual.

(c)  Compelling need.-In assessing compelling need for subsec
tions (a) and (b), the court shall weigh the need for disclosure
against the privacy interest of the individual and the public
interests which may be harmed by disclosure.

(d) Pleadings.-Pleadings under this section shall substitute a
pseudonym for the true name of the individual whose test result
is sought. Disclosure to the parties of the individual's true
name shall be communicated confidentially in documents not filed
with the court.

(e) Notice.-Before granting an order for testing or disclosure
and as soon as practicable after the filing of a petition under
this section, the court shall provide the individual whose test
result is sought with notice and a reasonable opportunity to
participate in the proceeding if the individual is not already a
party.

(f) In camera proceedings.-Court proceedings under this section
shall be conducted in camera, unless the individual agrees to a
hearing in open court or unless the court determines that a
public hearing is necessary to the public interest and the proper
administration of justice.

(g) Expedited proceeding.-The court shall provide for an expe
dited proceeding if it is requested by the applicant and the
application includes verified statements that:

(1)  The applicant has been exposed to a body fluid that poses a
risk of HIV infection from the individual whose test result is
sought.

(2)  The exposure occurred within six weeks of the filing of the
application.

(3)  The exposure involves:

(i) a percutaneous injury to the applicant's skin from a needle
stick or other sharp object;

(ii) contact of the applicant's eyes, mouth or other mucous
membrane;

(iii) contact of chapped or abraded skin of the applicant; or

(iv) prolonged contact of the applicant's skin.

An expedited proceeding on the application shall be held no later
than five days after the court complies with subsection (e),
pertaining to notice requirements.

(h) Safeguards against disclosure.-Upon the issuance of an order
to disclose the information, the court shall impose appropriate
safeguards against unauthorized disclosure which shall specify
the following:

(1)  The particular information which is essential to accommodate
the need of the party seeking disclosure.

(2)  The persons who may have access to the information.

(3)  The purposes for which the information will be used.

(4)  The appropriate prohibitions on future disclosure as provid
ed for in section 7,1.



 7609.  Civil immunity for certain physicians

(a)  Permissible disclosure.-Notwithstanding the provisions of
Section 7,1 a physician may disclose confidential HIV-related
information if all of the following conditions are met:

(1)  The disclosure is made to a known contact of the subject.

(2)  The physician reasonably believes disclosure is medically
appropriate, and there is a significant risk of future infection
to the contact.

(3)  The physician has counseled the subject regarding the need
to notify the contact, and the physician reasonably believes the
subject will not inform the Contact or abstain from sexual or
needle-sharing behavior which poses a significant risk of
infection to the contact.

(4)  The physician has informed the subject of his intent to make
such disclosure.

(b) Subject not to be identified.-When making such disclosure to
a contact, the physician shall not disclose the identity of the
subject or any other contact. Disclosure shall be made in person
except where circumstances reasonably prevent doing so.

(c) Duties relating to contacts.-A physician shall have no duty
to identify, locate or notify any contact, and no cause of action
shall arise for nondisclosure or for disclosure in conformity
with this section.

(d) Other immunity.-The physician who certifies that a signifi
cant exposure has occurred as provided by section 62 shall not be
subject to civil liability for the exposure evaluation if acting
in the good faith and reasonable belief that the certification
was appropriate and consistent with this act.



 7610.  Civil cause of action

Any person aggrieved by a violation of this act shall have a
cause of action against the person who committed such violation
and may recover compensatory damages.  In the event of a
violation of section 6 by a source patient's physician or an
employee thereof an aggrieved person may recover reasonable
attorney fees and costs.



 7611.  Separate violations

Each disclosure of confidential HIV-related information in viola
tion of this act or each HIV-related test conducted in
contravention of this act is separate for purposes of civil
liability.



 7612.  Disease Prevention and Control Law

Insofar as the provisions of the act of April 23, 1956 (1955 P.L.
1510, No. 500), known as the Disease Prevention and Control Law
of 1955, are inconsistent with this act, this act shall apply.