2021 Georgia Code
Title 31 - Health
Chapter 22 - Clinical Laboratories
§ 31-22-9.2. Hiv Tests - Report of Positive Results; Notification; Counseling; Violations; Exception for Insurance Coverage; Exposure of Health Care Provider

1. Any term used in this Code section and defined in Code Section 31-22-9.1 shall have the meaning provided for that term in Code Section 31-22-9.1.
2. Reserved.
3. Unless exempted under this Code section, each health care provider who orders an HIV test for any person shall do so only after notifying the person to be tested. Unless exempted under this subsection, the person to be tested shall have the opportunity to refuse the test. The provisions of this subsection shall not be required if the person is required to submit to an HIV test pursuant to Code Section 15-11-603, 17-10-15, 31-17A-3, 42-5-52.1, or 42-9-42.1. The provisions of this subsection shall not be required if the person is a minor or incompetent and the parent or guardian thereof permits the test after compliance with this subsection. The provisions of this subsection shall not be required if the person is unconscious, temporarily incompetent, or comatose and the next of kin permits the test after compliance with this subsection. The provisions of this subsection shall not apply to emergency or life-threatening situations. The provisions of this subsection shall not apply if the physician ordering the test is of the opinion that the person to be tested is in such a medical or emotional state that disclosure of the test would be injurious to the person's health. The provisions of this subsection shall only be required prior to drawing the body fluids required for the HIV test and shall not be required for each test performed upon that fluid sample.
4. The health care provider ordering an HIV test shall provide medically appropriate counseling to the person tested with regard to the test results. Such medically appropriate counseling shall only be required when the last confirmatory test has been completed.
5. The criminal penalty provided in Code Section 31-22-13 shall not apply to a violation of subsection (c), (d), or (g) of this Code section. The statute of limitations for any action alleging a violation of this Code section shall be two years from the date of the alleged violation.
6. The provisions of this Code section shall not apply to situations in which an HIV test is ordered or required in connection with insurance coverage, provided that the person to be tested or the appropriate representative of that person has agreed to have the test administered under such procedures as may be established by the Commissioner of Insurance after consultation with the Department of Community Health.
7. Notwithstanding the other provisions of this Code section, when exposure of a health care provider to any body fluids of a patient occurs in such a manner as to create any risk that such provider might become an HIV infected person if the patient were an HIV infected person, according to current infectious disease guidelines of the Centers for Disease Control and Prevention or according to infectious disease standards of the health care facility where the exposure occurred, a health care provider otherwise authorized to order an HIV test shall be authorized to order any HIV test on such patient and obtain the results thereof:
   1. If the patient or the patient's representative, if the patient is a minor, otherwise incompetent, or unconscious, does not refuse the test after being notified that the test is to be ordered; or
   2. If the patient or the patient's representative refuses the test, following compliance with paragraph (1) of this subsection, when at least one other health care provider who is otherwise authorized to order an HIV test concurs in writing to the testing and the patient is informed of the results of the test and is provided counseling with regard to those results.

(Code 1981, §31-22-9.2, enacted by Ga. L. 1988, p. 1799, § 8; Ga. L. 1990, p. 705, §§ 2, 3; Ga. L. 2000, p. 20, § 20; Ga. L. 2006, p. 72, § 31/SB 465; Ga. L. 2007, p. 173, § 2/HB 429; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2013, p. 294, § 4-43/HB 242; Ga. L. 2015, p. 1346, § 2/HB 436; Ga. L. 2016, p. 752, § 4/HB 1058; Ga. L. 2018, p. 1112, § 31/SB 365; Ga. L. 2021, p. 472, § 1/HB 93.)

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, deleted "31-17-4.2," following "17-10-15," in the third sentence of subsection (c).

- HIV pregnancy screening, § 31-17-4.2.

Control of HIV, T. 31, C. 17A.

- Pursuant to Code Section 28-9-5, in 2004, subsection (b) was reserved.

- Ga. L. 1988, p. 1799, § 1, not codified by the General Assembly, provides: "The General Assembly finds that Acquired Immunodeficiency Syndrome (AIDS) and its causative agent, including Human Immunodeficiency Virus (HIV), pose a grave threat to the health, safety, and welfare of the people of this state. In the absence of any effective vaccination or treatment for this disease, it threatens almost certain death to all who contract it. The disease is largely transmitted through sexual contacts and intravenous drug use, not through casual contact, and, while deadly, is therefore preventable. The key component of the fight against AIDS is education. Through public education and counseling our citizens can learn how the disease is transmitted and, thus, how to protect themselves and prevent its spread. The Department of Human Resources is encouraged to continue its efforts to educate all Georgians about the disease, its causative agent, and its means of transmission. In addition, voluntary testing should be encouraged for anyone who feels at risk of infection. While education, counseling, and voluntary testing are vital to the elimination of this epidemic, other measures are needed to protect the health of our citizens, and it is the intention of the General Assembly to enact such measures in the exercise of its police powers in order to deal with AIDS and HIV infection."

Former subsection (b) was repealed by its own terms effective December 31, 2003.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Ga. L. 2021, p. 472, § 1/HB 93, reenacted this Code section without change, effective July 1, 2021.

- Medical or life-style questions on applications and underwriting guidelines affecting AIDS and ARC, Official Compilation of the Rules and Regulations of the State of Georgia, Comptroller General, Commissioner of Insurance, Subject 120-2-43.

- For note on 1990 amendment of this Code section, see 7 Ga. St. U. L. Rev. 312 (1990). For comment, "AIDS: Balancing the Physician's Duty to Warn and Confidentiality Concerns," see 38 Emory L.J. 280 (1989).

JUDICIAL DECISIONS

Failure to inform patient.

- Patient's claim against a doctor and hospital for failure to report the positive results of the patient's HIV test to the patient as required under O.C.G.A. § 31-22-9.2 was a classic medical malpractice claim, despite the patient's claim that it was ordinary negligence; because the claim was brought eight years after the test, the claim was barred by the five-year statute of repose, O.C.G.A. § 9-3-71(b). Piedmont Hospital, Inc. v. D. M., 335 Ga. App. 442, 779 S.E.2d 36 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 37A Am. Jur. 2d, Freedom of Information Act, § 37 et seq.

- Damage action for HIV testing without consent of person tested, 77 A.L.R.5th 541.