2014 Kentucky Revised Statutes CHAPTER 214 - DISEASES 214.625 Legislative findings -- Consent for medical procedures and tests including HIV infection -- Physician's responsibility -- Confidentiality of results -- Exceptions -- Disclosure -- Network of voluntary HIV testing programs.
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214.625 Legislative findings -- Consent for medical procedures and tests
including HIV infection -- Physician's responsibility -- Confidentiality of
results -- Exceptions -- Disclosure -- Network of voluntary HIV testing
programs.
(1)
(2)
(3)
(4)
(5)
The General Assembly finds that the use of tests designed to reveal a
condition indicative of human immunodeficiency virus (HIV) infection can be a
valuable tool in protecting the public health. The General Assembly finds that
despite current scientific knowledge that zidovudine (AZT) prolongs the lives of
acquired immunodeficiency syndrome victims, and may also be effective when
introduced in the early stages of human immunodeficiency virus infection,
many members of the public are deterred from seeking testing because they
misunderstand the nature of the test or fear that test results will be disclosed
without their consent. The General Assembly finds that the public health will be
served by facilitating informed, voluntary, and confidential use of tests
designed to detect human immunodeficiency virus infection.
A person who has signed a general consent form for the performance of
medical procedures and tests is not required to also sign or be presented with
a specific consent form relating to medical procedures or tests to determine
human
immunodeficiency
virus
infection,
antibodies
to
human
immunodeficiency virus, or infection with any other causative agent of acquired
immunodeficiency syndrome that will be performed on the person during the
time in which the general consent form is in effect. However, a general consent
form shall instruct the patient that, as part of the medical procedures or tests,
the patient may be tested for human immunodeficiency virus infection,
hepatitis, or any other blood-borne infectious disease if a doctor or advanced
practice registered nurse orders the test for diagnostic purposes. Except as
otherwise provided in subsection (5)(c) of this section, the results of a test or
procedure to determine human immunodeficiency virus infection, antibodies to
human immunodeficiency virus, or infection with any probable causative agent
of acquired immunodeficiency syndrome performed under the authorization of
a general consent form shall be used only for diagnostic or other purposes
directly related to medical treatment.
In any emergency situation where informed consent of the patient cannot
reasonably be obtained before providing health-care services, there is no
requirement that a health-care provider obtain a previous informed consent.
The physician or advanced practice registered nurse who orders the test
pursuant to subsections (1) and (2) of this section, or the attending physician,
shall be responsible for informing the patient of the results of the test if the test
results are positive for human immunodeficiency virus infection. If the tests are
positive, the physician or advanced practice registered nurse shall also be
responsible for either:
(a) Providing information and counseling to the patient concerning his
infection or diagnosis and the known medical implications of such status
or condition; or
(b) Referring the patient to another appropriate professional or health-care
facility for the information and counseling.
(a) No person in this state shall perform a test designed to identify the human
(b)
(c)
immunodeficiency virus, or its antigen or antibody, without first obtaining
the informed consent of the person upon whom the test is being
performed, except as specified in subsections (2) and (3) of this section.
No test result shall be determined as positive, and no positive test result
shall be revealed to any person, without corroborating or confirmatory
tests being conducted.
No person who has obtained or has knowledge of a test result pursuant
to this section shall disclose or be compelled to disclose the identity of
any person upon whom a test is performed, or the results of the test in a
manner which permits identification of the subject of the test, except to
the following persons:
1.
The subject of the test or the subject's legally authorized
representative;
2.
Any person designated in a legally effective release of the test
results executed prior to or after the test by the subject of the test or
the subject's legally authorized representative;
3.
A physician, nurse, or other health-care personnel who has a
legitimate need to know the test result in order to provide for his
protection and to provide for the patient's health and welfare;
4.
Health-care providers consulting between themselves or with
health-care facilities to determine diagnosis and treatment;
5.
The cabinet, in accordance with rules for reporting and controlling
the spread of disease, as otherwise provided by state law;
6.
A health facility or health-care provider which procures, processes,
distributes, or uses:
a.
A human body part from a deceased person, with respect to
medical information regarding that person; or
b.
Semen provided prior to July 13, 1990, for the purpose of
artificial insemination;
7.
Health facility staff committees, for the purposes of conducting
program monitoring, program evaluation, or service reviews;
8.
Authorized medical or epidemiological researchers who shall not
further disclose any identifying characteristics or information;
9.
A parent, foster parent, or legal guardian of a minor; a crime victim;
or a person specified in KRS 438.250;
10. A person allowed access by a court order which is issued in
compliance with the following provisions:
a.
No court of this state shall issue an order to permit access to a
test for human immunodeficiency virus performed in a medical
or public health setting to any person not authorized by this
section or by KRS 214.420. A court may order an individual to
be tested for human immunodeficiency virus only if the person
seeking the test results has demonstrated a compelling need
for the test results which cannot be accommodated by other
means. In assessing compelling need, the court shall weigh
(6)
(a)
(b)
the need for testing and disclosure against the privacy interest
of the test subject and the public interest which may be
disserved by disclosure which deters blood, organ, and semen
donation and future human immunodeficiency virus-related
testing or which may lead to discrimination. This paragraph
shall not apply to blood bank donor records;
b.
Pleadings pertaining to disclosure of test results shall
substitute a pseudonym for the true name of the subject of the
test. The disclosure to the parties of the subject's true name
shall be communicated confidentially, in documents not filed
with the court;
c.
Before granting any order, the court shall provide the individual
whose test result is in question with notice and a reasonable
opportunity to participate in the proceedings if he is not already
a party;
d.
Court proceedings as to disclosure of test results shall be
conducted in camera, unless the subject of the test 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; and
e.
Upon the issuance of an order to disclose test results, the
court shall impose appropriate safeguards against
unauthorized disclosure, which shall specify the persons who
may have access to the information, the purposes for which
the information shall be used, and appropriate prohibitions on
future disclosure.
No person to whom the results of a test have been disclosed shall
disclose the test results to another person except as authorized by this
subsection. When disclosure is made pursuant to this subsection, it shall
be accompanied by a statement in writing which includes the following or
substantially similar language: "This information has been disclosed to
you from records whose confidentiality is protected by state law. State law
prohibits you from making any further disclosure of such information
without the specific written consent of the person to whom such
information pertains, or as otherwise permitted by state law. A general
authorization for the release of medical or other information is NOT
sufficient for this purpose." An oral disclosure shall be accompanied by
oral notice and followed by a written notice within ten (10) days.
The Cabinet for Health and Family Services shall establish a network of
voluntary human immunodeficiency virus testing programs in every
county in the state. These programs shall be conducted in each public
health department established under the provisions of KRS Chapter 211.
Additional programs may be contracted to other private providers to the
extent that finances permit and local circumstances dictate.
Each public health department shall have the ability to provide counseling
and testing for the human immunodeficiency virus to each patient who
receives services and shall offer the testing on a voluntary basis to each
(7)
patient who requests the test.
(c) Each public health department shall provide a program of counseling and
testing for human immunodeficiency virus infection, on an anonymous or
confidential basis, dependent on the patient's desire. If the testing is
performed on an anonymous basis, only the statistical information relating
to a positive test for human immunodeficiency virus infection shall be
reported to the cabinet. If the testing is performed on a confidential basis,
the name and other information specified in KRS 214.645 shall be
reported to the cabinet. The cabinet shall continue to provide for
anonymous testing and counseling.
(d) The result of a serologic test conducted under the auspices of the cabinet
shall not be used to determine if a person may be insured for disability,
health, or life insurance or to screen or determine suitability for, or to
discharge a person from, employment. Any person who violates the
provisions of this subsection shall be guilty of a Class A misdemeanor.
No public health department and no other person in this state shall conduct or
hold themselves out to the public as conducting a testing program for acquired
immunodeficiency syndrome, acquired immunodeficiency syndrome related
complex, or human immunodeficiency virus status without first registering with
the cabinet, complying with all other applicable provisions of state law, and
meeting the following requirements:
(a) The program shall be directed by a person who has completed an
educational course approved by the cabinet in the counseling of persons
with acquired immunodeficiency syndrome, acquired immunodeficiency
syndrome related complex, or human immunodeficiency virus infection;
(b) The program shall have all medical care supervised by a physician
licensed under the provisions of KRS Chapter 311;
(c) The program shall have all laboratory procedures performed in a
laboratory licensed under the provisions of KRS Chapter 333;
(d) Informed consent shall be required prior to testing. Informed consent shall
be preceded by an explanation of the test, including its purpose, potential
uses, and limitations and the meaning of its results;
(e) The program, unless it is a blood donor center, shall provide pretest
counseling on the meaning of a test for human immunodeficiency virus,
including medical indications for the test; the possibility of false positive or
false negative results; the potential need for confirmatory testing; the
potential social, medical, and economic consequences of a positive test
result; and the need to eliminate high-risk behavior;
(f) The program shall provide supplemental corroborative testing on all
positive test results before the results of any positive test is provided to
the patient;
(g) The program shall provide post-test counseling, in person, on the
meaning of the test results; the possible need for additional testing; the
social, medical, and economic consequences of a positive test result; and
the need to eliminate behavior which might spread the disease to others;
(h) Each person providing post-test counseling to a patient with a positive
test result shall receive specialized training, to be specified by regulation
of the cabinet, about the special needs of persons with positive results,
including recognition of possible suicidal behavior, and shall refer the
patient for further health and social services as appropriate;
(i) When services are provided for a charge during pretest counseling,
testing, supplemental testing, and post-test counseling, the program shall
provide a complete list of all charges to the patient and the cabinet; and
(j) Nothing in this subsection shall be construed to require a facility licensed
under KRS Chapter 333 or a person licensed under the provisions of KRS
Chapters 311, 312, or 313 to register with the cabinet if he or she does
not advertise or hold himself or herself out to the public as conducting
testing programs for human immunodeficiency virus infection or
specializing in such testing.
(8) Any violation of this section by a licensed health-care provider shall be a
ground for disciplinary action contained in the professional's respective
licensing chapter.
(9) Except as provided in subsection (6)(d) of this section and KRS 304.12-013,
insurers and others participating in activities related to the insurance
application and underwriting process shall be exempt from this section.
(10) The cabinet shall develop program standards consistent with the provisions of
this section for counseling and testing persons for the human
immunodeficiency virus.
Effective:July 15, 2010
History: Amended 2010 Ky. Acts ch. 85, sec. 74, effective July 15, 2010. -Amended 2005 Ky. Acts ch. 99, sec. 467, effective June 20, 2005. -- Amended
2004 Ky. Acts ch. 102, sec. 3, effective July 13, 2004. -- Amended 2000 Ky.
Acts ch. 432, sec. 8, effective July 14, 2000. -- Amended 1998 Ky. Acts ch. 426,
sec. 414, effective July 15, 1998. -- Amended 1994 Ky. Acts ch. 309, sec. 2,
effective July 15, 1994. -- Created 1990 Ky. Acts ch. 443, sec. 40, effective July
13, 1990.
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