2013 Maryland Code
HEALTH - GENERAL
§ 18-338 - Inmates of correctional institutions

§18-338.

(a) (1) In this section the following words have the meanings indicated.

(2) “Correctional institution” means a place of detention or correctional confinement operated by or for the State or a local government.

(3) “Correctional employee” means:

(i) A person who is employed by a correctional institution; or

(ii) A person who performs duties in a correctional institution by virtue of federal, State, or local government employment.

(4) “Court” means a district or circuit court of the State.

(5) “Exposure” means, as between a correctional employee and an inmate:

(i) Percutaneous contact with blood, semen, or blood contaminated fluids;

(ii) Mucocutaneous contact with blood, semen, or blood contaminated fluids;

(iii) Open wound, including dermatitis, exudative lesions, or chapped skin, contact with blood, semen, or blood contaminated fluids; and

(iv) Intact skin contact with large amounts of blood, semen, or blood contaminated fluids for a prolonged period.

(6) “Health care provider” means:

(i) Any person, including a physician or hospital, who is licensed or otherwise authorized in this State to provide health care services and is under contract with or operated by the correctional facility; or

(ii) An employee’s private physician.

(b) An inmate shall furnish to the correctional institution a blood sample or buccal (cheek) swab to be tested for the presence of human immunodeficiency virus (HIV) when:

(1) There has been an exposure involving the inmate;

(2) The exposure occurred in connection with the inmate’s violation of institutional regulations;

(3) The inmate has been found guilty of the violation of institutional regulations described in paragraph (2) of this subsection;

(4) The correctional employee involved in the exposure has given written notice of the exposure to the managing official of the correctional institution, or the official’s designee; and

(5) The exposure is confirmed by a health care provider.

(c) The correctional institution shall collect the blood sample from the inmate, and shall have the sample tested for human immunodeficiency virus (HIV) by a test and test procedure approved by the Department.

(d) (1) If the inmate refuses to furnish to the correctional institution a blood sample or buccal (cheek) swab to be tested for the presence of human immunodeficiency virus (HIV) as required under subsection (b) of this section, a court may order the inmate to furnish the blood sample or buccal (cheek) swab if:

(i) The correctional employee involved in the exposure or the correctional employee’s representative requests the testing in writing to the State’s Attorney in the county where the exposure occurred; and

(ii) The court finds probable cause to believe that the exposure occurred.

(2) Before ordering a test under paragraph (1) of this subsection and subject to the provisions of paragraph (6) of this subsection, the court shall hold a hearing at which the correctional employee or the correctional employee’s representative and the inmate or the inmate’s representative have the right to be present.

(3) The correctional employee or the correctional employee’s representative and the inmate or the inmate’s representative shall be notified of:

(i) The date, time, and location of the hearing; and

(ii) Their right to be present at the hearing.

(4) During the hearing, the court may admit into evidence only affidavits, counter-affidavits, and medical records that:

(i) Relate to the material facts of the case; and

(ii) Support or rebut a finding of probable cause to issue a court order.

(5) The written request of the correctional employee or the correctional employee’s representative shall be:

(i) Filed by the State’s Attorney with the court; and

(ii) Sealed by the court.

(6) Except for good cause, the court shall:

(i) Hold the hearing within 15 days after the State’s Attorney’s presentment to the court of the written request of the correctional employee or the correctional employee’s representative; and

(ii) Issue an order granting or denying the request within 3 days after the conclusion of the hearing.

(e) The correctional employee shall be notified of the results of the test for the presence of human immunodeficiency virus (HIV) conducted under the provisions of this section.

(f) The notification required under subsection (e) of this section shall:

(1) Be made within 48 hours of confirmation of the inmate’s diagnosis;

(2) Include subsequent written confirmation of the possible exposure to human immunodeficiency virus (HIV); and

(3) To the extent possible, be made in a manner that will protect the confidentiality of the correctional employee and the inmate.

(g) If the results of the blood sample test are positive for the presence of human immunodeficiency virus (HIV), then the correctional employee and the inmate shall be provided appropriate counseling.

(h) All correctional institutions shall develop written procedures to carry out the provisions of this section.

(i) A health care provider acting in good faith to provide notification in accordance with this section may not be held liable in any cause of action related to a breach of patient confidentiality.

(j) A health care provider acting in good faith to provide notification in accordance with this section may not be held liable in any cause of action for:

(1) The failure to give the required notice, if the correctional employee fails to properly initiate the notification procedures developed by the correctional institution under subsection (h) of this section; or

(2) The failure of the managing official of the correctional institution within which the correctional employee is employed to subsequently notify the correctional employee of the possible exposure to human immunodeficiency virus (HIV).

(k) A health care provider may not be held liable in any cause of action related to obtaining a blood sample or performing and interpreting an approved HIV test without the inmate’s informed consent.

§ 18-338 - 1. Health care providers

(a) Definitions. --

(1) In this section the following words have the meanings indicated.

(2) (i) "Body fluids" means:

1. Any fluid containing visible blood, semen, or vaginal secretions; or

2. Cerebrospinal fluid, synovial, or amniotic fluid.

(ii) "Body fluid" does not include saliva, stool, nasal secretions, sputum, tears, urine, or vomitus.

(3) "Exposure" means as between a patient and a health care provider:

(i) Percutaneous contact with blood or body fluids;

(ii) Mucocutaneous contact with blood or body fluids;

(iii) Open wound, including dermatitis, exudative lesions, or chapped skin, contact with blood or body fluids for a prolonged period; or

(iv) Intact skin contact with large amounts of blood or body fluids for a prolonged period.

(4) "Health care facility" means a facility or office where health or medical care is provided to patients by a health care provider, including:

(i) A health care facility as defined in § 19-114 (d) (1) of this article;

(ii) A facility operated by the Department or a health officer;

(iii) The office of a health care provider; or

(iv) A medical laboratory.

(5) (i) "Health care provider" means a person who is licensed, certified, or otherwise authorized under the Health Occupations Article to provide health or medical care in:

1. The ordinary course of business or practice of a profession; or

2. In an approved education or training program.

(ii) "Health care provider" includes any agent or employee of a health care facility.

(iii) "Health care provider" does not include any individual who is eligible to receive notification under the provisions of § 18-213 of this title, including any law enforcement officer or any member of any fire department, ambulance company, or rescue squad.

(6) "HIV" means the human immunodeficiency virus that causes acquired immune deficiency syndrome.

(b) Informed consent -- Requirements. -- Except as provided in § 18-338.3 of this subtitle, a physician, nurse, or designee of a health care facility shall, at the request of an exposed health care provider, seek the informed consent of a patient to test a blood sample of the patient for the presence of HIV when:

(1) There has been an exposure between the patient and the health care provider;

(2) The health care provider involved in the exposure has given prompt written notice of the exposure, in accordance with the standards of the health care facility, to the chief executive officer or the chief executive officer's designee of the health care facility where the exposure occurred;

(3) The exposure occurred based on the judgment of a physician who is not the health care provider involved in the exposure; and

(4) The health care provider involved in the exposure has given informed consent and has submitted a blood sample to be tested for the presence of HIV in accordance with the provisions of subsection (d) of this section.

(c) Substitute consent. -- If, by virtue of the physical or mental condition of a patient, a physician, nurse, or designee of a health care facility is unable to obtain the informed consent of the patient to test a blood sample of the patient for the presence of HIV in accordance with subsection (b) of this section, the physician, nurse, or designee of the health care facility shall seek the consent of any person who has authority to consent to medical care for the patient as provided under § 5-605 of this article or as otherwise authorized by law.

(d) Testing. -- If the patient's informed consent has been obtained in accordance with subsection (b) of this section or substitute consent has been obtained in accordance with subsection (c) of this section and the other requirements of subsection (b) of this section have been satisfied, a physician or the physician's designee shall:

(1) Collect the blood sample from the patient and health care provider involved in the exposure; and

(2) Have the blood samples tested for the presence of HIV using a test procedure approved by the Department.

(e) Notice of results -- In general. -- When a physician obtains the results of a test for the presence of HIV that was conducted in accordance with the provisions of subsection (d) of this section, the physician or a designee of the health care facility shall directly notify the health care provider and the patient of the results of the patient's HIV test.

(f) Notice of results -- Requirements. -- The notification required under subsection (e) of this section shall:

(1) Be made within 48 hours of confirmation of the results of the patient's HIV test;

(2) Include subsequent written confirmation of the possible exposure to HIV; and

(3) To the extent possible, be made in a manner that will protect the confidentiality of the health care provider and the patient.

(g) Positive test results -- Counseling. -- If the results of a test for the presence of HIV that was conducted in accordance with the provisions of subsection (d) of this section are positive, a physician or the physician's designee shall provide or arrange for the provision of appropriate counseling to the health care provider and the patient.

(h) Confidentiality. --

(1) Notwithstanding the provisions of Title 4, Subtitle 3 of this article, the records, including any physician order for an HIV test or the results of an HIV test performed on a blood sample of a patient or a health care provider in accordance with the provisions of this section, may not be documented in the medical record of the patient or health care provider.

(2) The health care facility shall maintain a separate confidential record or incident report for all HIV tests performed on a blood sample of a patient or health care provider in accordance with the provisions of this section.

(3) The health care facility shall adopt procedures for the confidential testing of blood samples obtained in accordance with the provisions of this section.

(4) Except as provided in paragraph (5) of this subsection, the records, including any physician order for an HIV test or the results, of any HIV test performed on a blood sample of a patient or health care provider in accordance with the provisions of this section are:

(i) Confidential; and

(ii) Not discoverable or admissible in evidence in any criminal, civil, or administrative action.

(5) If the identity of the patient or any other information that could be readily associated with the identity of the patient is not disclosed, the results of an HIV test performed on a patient or health care provider in accordance with the provisions of this section may be introduced into evidence in any criminal, civil, or administrative action including the adjudication of a workers' compensation claim.

(i) Costs. -- The costs incurred in performing an HIV test on a patient or health care provider in accordance with the provisions of this section shall be paid by the health care facility.

(j) Procedures. -- All health care facilities shall develop written procedures to implement the provisions of this section.

(k) Liability of health care provider -- Disclosures. -- A health care provider or health care facility acting in good faith to provide notification or maintain the confidentiality of the results of a test for the presence of HIV in accordance with the provisions of this section may not be held liable in any cause of action related to a breach of patient or health care provider confidentiality.

(l) Practice protocol. -- The Medical and Chirurgical Faculty of the State of Maryland in consultation with the Centers for Disease Control and Prevention, the Maryland Hospital Association, and the Department of Health and Mental Hygiene shall develop a practice protocol for physicians who are infected with HIV.

§ 18-338 - 2. Pregnant women

(a) Definitions. --

(1) In this section the following words have the meanings indicated.

(2) "Health care facility" means a facility or office where health or medical care is provided to patients by a health care provider, including:

(i) A hospital as defined in § 19-301 of this article;

(ii) A facility operated by the Department or a health officer; and

(iii) The office of a health care provider.

(3) "Health care provider" means a physician, nurse, or designee of a health care facility.

(4) "HIV" means the human immunodeficiency virus that causes acquired immune deficiency syndrome (AIDS).

(5) "Prenatal care" means obstetric and gynecologic service performed as part of a prenatal care program, including:

(i) Screening;

(ii) Physical examination;

(iii) Laboratory and diagnostic testing procedures and interpretation; and

(iv) Counseling.

(b) HIV testing as part of prenatal medical care. -- A health care provider who provides prenatal medical care shall:

(1) Notify each pregnant patient that she will be tested for HIV infection as part of the routine prenatal blood tests;

(2) Advise the pregnant patient that she has the right to refuse the test for HIV infection without penalty;

(3) Obtain informed consent from the pregnant patient to test her for HIV infection;

(4) Test the patient, unless the patient declines the test;

(5) Document in the medical record if the patient declines the test;

(6) Offer an HIV test in the third trimester to a pregnant woman who was not tested earlier in her pregnancy;

(7) Consider routinely offering a repeat HIV test in the third trimester to all pregnant women:

(i) At health care facilities in areas of high rates of HIV prevalence; and

(ii) Who are at a high risk of acquiring HIV; and

(8) Provide a referral for treatment and supportive services, including case management services.

(c) HIV testing as part of labor and delivery service. -- A health care provider who provides labor and delivery services to pregnant women shall offer:

(1) A rapid HIV test to pregnant women with unknown or undocumented HIV status during labor and delivery; and

(2) Antiretroviral prophylaxis prior to receiving the results of the confirmatory test if a rapid HIV test during labor and delivery is positive.

(d) Counseling. --

(1) As part of a health care provider's patient acceptance procedures or protocol, a health care provider shall provide a pregnant woman with counseling concerning being tested for the presence of HIV as part of the woman's prenatal care program.

(2) The counseling shall include:

(i) Information required for pretest counseling under § 18-336 of this subtitle; and

(ii) Education on:

1. The effect of a positive HIV test result on the pregnant woman and the fetus concerning the risk of transmission of HIV to the fetus; and

2. Recognized methods of reducing that risk, including the use of pharmaceuticals during pregnancy known to reduce the risk of transmission of HIV to the fetus.

(e) Confidentiality of test results. --

(1) Except as otherwise provided in paragraph (2) of this subsection, the record of an HIV test performed under this section is confidential and not discoverable or admissible in evidence in any criminal, civil, or administrative action.

(2) Provided that the identity or any other information that could readily be associated with the identity of the pregnant woman is not disclosed, the results of an HIV test performed under this section may be introduced into evidence in any criminal, civil, or administrative action, including the adjudication of a workers' compensation claim.

(f) Immunity. -- A health care provider, including a health care facility, acting in good faith to provide the counseling required under subsection (d) of this section may not be held liable in any cause of action related to a woman's decision to consent or not to consent to have an HIV test.

§ 18-338 - 3. HIV Testing -- Health care workers or first responders

(a) Definitions. --

(1) In this section the following words have the meanings indicated.

(2) (i) "Body fluids" means:

1. Any fluid containing visible blood, semen, or vaginal secretions; or

2. Cerebrospinal fluid, synovial fluid, or amniotic fluid.

(ii) "Body fluids" does not include saliva, stool, nasal secretions, sputum, tears, urine, or vomitus.

(3) "Exposure" means:

(i) Percutaneous contact with blood or body fluids;

(ii) Mucocutaneous contact with blood or body fluids;

(iii) Open wound, including dermatitis, exudative lesions, or chapped skin, contact with blood or body fluids for a prolonged period; or

(iv) Intact skin contact with large amounts of blood or body fluids for a prolonged period.

(4) "First responder" means an individual who:

(i) Is licensed or certified under § 13-516 of the Education Article; and

(ii) Provides services to an individual before the individual is admitted to a hospital.

(5) (i) "Health care provider" means an individual who is licensed, certified, or otherwise authorized under the Health Occupations Article or this article to provide health or medical care in:

1. The ordinary course of business or practice of a profession; or

2. An approved education or training program.

(ii) "Health care provider" includes any agent or employee of a hospital.

(iii) "Health care provider" does not include an individual who is eligible to receive notification under the provisions of § 18-213 of this title, including any law enforcement officer or any member of any fire department, ambulance company, or rescue squad.

(6) "HIV" means the human immunodeficiency virus that causes acquired immune deficiency syndrome.

(7) "Hospital" has the meaning stated in § 19-301 of this article.

(8) "Public safety worker" means:

(i) A career or volunteer member of a fire, rescue, or emergency medical services department, company, squad, or auxiliary;

(ii) A law enforcement officer;

(iii) The State Fire Marshal or a sworn member of the State Fire Marshal's office; or

(iv) A forensic scientist who works under the direction of a law enforcement agency.

(b) In general; consent; notice. -- Notwithstanding the provisions of § 18-338.1 of this subtitle, the designated infectious disease/communicable disease officer of a hospital shall order a test for the presence of antibodies to the human immunodeficiency virus (HIV) under subsection (d) of this section when:

(1) There has been an exposure in a hospital between a patient and a health care provider, an exposure between a patient and a first responder, or an exposure between a patient and a public safety worker before admission of the patient to a hospital, that, in accordance with the Centers for Disease Control and Prevention recommendations, would warrant recommending or offering chemoprophylaxis treatment for the health care provider, first responder, or public safety worker;

(2) (i) Informed consent, or substitute consent as required under § 18-338.1(c) of this subtitle, of the patient to test a blood sample of the patient for the presence of HIV was sought and the patient was unavailable or unable to consent; or

(ii) Informed consent, or substitute consent as required under § 18-338.1(c) of this subtitle, of the patient to test a blood sample already obtained from the patient for the presence of HIV was sought, the patient refused, and the patient was informed of the provisions of this subsection;

(3) (i) In accordance with hospital procedures, the health care provider involved in the exposure has given prompt notice of the exposure to the designated hospital infectious disease/communicable disease officer where the exposure occurred; or

(ii) 1. A. The first responder involved in the exposure has given prompt notice to the medical director with jurisdiction over the first responder; or

B. The public safety worker involved in the exposure has given prompt notice to the medical director with jurisdiction over the public safety worker; and

2. The medical director has given prompt notice to the designated hospital infectious disease/communicable disease officer where the patient is admitted;

(4) The health care provider, first responder, or public safety worker involved in the exposure has given informed consent and has submitted a blood sample to be tested for the presence of HIV; and

(5) The designated hospital infectious disease/communicable disease officer has made a determination, in accordance with the Centers for Disease Control and Prevention recommendations, that the testing of blood samples or other body fluids of the patient for the presence of antibodies to the human immunodeficiency virus (HIV) would be helpful in managing the risk of disease and health outcome of the health care provider, first responder, or public safety worker.

(c) Exposure between first responder or public safety worker and individual prior to hospital admission. -- If there has been an exposure between a first responder and an individual or a public safety worker and an individual before the admission of the individual to a hospital:

(1) The first responder or public safety worker shall give notice to the first responder's or public safety worker's medical director in accordance with subsection (b)(3)(ii)1 of this section;

(2) The medical director shall act as an intermediary at all times between the first responder or public safety worker and the designated hospital infectious disease/communicable disease officer; and

(3) The medical director and the designated hospital infectious disease/communicable disease officer shall ensure that all communications and information related to the exposure of the first responder or public safety worker are confidential.

(d) Testing ordered. -- If the requirements of subsections (b) and (c) of this section are satisfied, the designated hospital infectious disease/communicable disease officer shall order tests to be conducted for the presence of antibodies to the human immunodeficiency virus (HIV) using a test procedure approved by the Department on:

(1) Blood samples already obtained from the patient; or

(2) Blood samples or other body fluids collected for the purpose of HIV testing under this section.

(e) Notification of results. -- When the designated hospital infectious disease/communicable disease officer obtains the results of an HIV test conducted in accordance with the provisions of subsection (d) of this section, the designated hospital infectious disease/communicable disease officer shall attempt to directly notify the patient of the results of the HIV test and, to the extent possible, in a manner that will protect the confidentiality of the health care provider, the first responder, or the public safety worker and the patient.

(f) Counseling and treatment. -- If the results of an HIV test conducted in accordance with the provisions of subsection (d) of this section are positive, the designated hospital infectious disease/communicable disease officer shall provide or arrange for the provision of appropriate counseling and treatment recommendations to the health care provider, first responder, or public safety worker and the patient.

(g) Confidentiality. --

(1) Notwithstanding the provisions of Title 4, Subtitle 3 of this article, the medical records, including any physician order for an HIV test or the results of an HIV test conducted under this section, may not be documented in the medical record of the patient, health care provider, first responder, or public safety worker.

(2) The hospital where the exposure occurred shall maintain a separate confidential record or incident report for all HIV tests conducted under this section.

(3) Each hospital shall adopt procedures for the confidential HIV testing of blood samples or other body fluids used or collected for purposes of this section.

(4) Except as provided in paragraph (5) of this subsection, the medical records, including any physician order for an HIV test or the results of any HIV test conducted under this section, are:

(i) Confidential; and

(ii) Not discoverable or admissible in evidence in any criminal, civil, or administrative action.

(5) If the identity of the patient or any other information that could be readily associated with the identity of the patient is not disclosed, the results of an HIV test conducted on a patient for purposes of this section may be introduced into evidence in any criminal, civil, or administrative action including the adjudication of a workers' compensation claim.

(h) Costs. -- The costs incurred in performing an HIV test on a patient in accordance with the provisions of this section shall be paid by the hospital.

(i) Adoption of written procedures. -- Each hospital shall develop written procedures to implement the provisions of this section.

(j) Liability for breach of confidentiality. -- A health care provider, first responder, public safety worker, or hospital or designee of a hospital acting in good faith to provide notification or maintain the confidentiality of the results of a test conducted under this section may not be held liable in any cause of action related to a breach of patient, health care provider, first responder, or public safety worker confidentiality.