Health and Safety

CHAPTER 23-6.3
Prevention and Suppression of Contagious Diseases – HIV/AIDS

SECTION 23-6.3-3

§ 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 § 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.

History of Section.
(P.L. 2009, ch. 196, § 1; P.L. 2009, ch. 289, § 1.)