2006 Louisiana Laws - RS 40:1300.13 — Hiv-related testing; consent; exceptions

§1300.13.  HIV-related testing; consent; exceptions

A.  Except as provided, specifically authorized, or required by a state or federal law, no person shall order the performance of an HIV-related test in a hospital without first receiving the written informed consent or otherwise without first receiving the written informed consent or verbal informed consent contemporaneously documented in writing in the medical record, of the subject of the test if the individual has capacity to consent or, when the subject lacks capacity to consent, that of a designated person pursuant to law to consent to health care for such individual.  

B.  The written informed consent to an HIV-related test shall consist of a statement signed by the subject of the test who has capacity to consent or, when the subject lacks capacity to consent, by a person authorized by law to consent to health care for the subject.  The Department of Health and Hospitals shall promulgate rules and regulations and develop consent forms and informational materials in accordance with the Administrative Procedure Act, which shall establish minimal requirements for compliance with the provisions of this Part relative to written informed consents.  Adherence to these rules, regulations, and forms shall constitute a legal presumption that consent for testing was validly obtained.  

C.  Verbal informed consent shall be immediately and contemporaneously documented in writing in the medical record of the person being tested.  The Department of Health and Hospitals shall promulgate rules and regulations in accordance with the Administrative Procedure Act which shall establish minimal requirements for compliance with the provisions of this Part relative to verbal informed consent.

Written documentation of verbal informed consent shall not constitute a presumption, legal or otherwise, that consent for testing was validly obtained.  

D.  Prior to the execution of an informed consent, the person requesting the performance of an HIV-related test shall provide to the subject of an HIV-related test or, if the subject lacks capacity to consent, to a person authorized by law to consent to health care for the subject, an oral, videotaped, or written explanation of the nature of AIDS and HIV-related illness, as well as oral, videotaped, or written information about behavior known to pose risks for transmission and contraction of HIV infection.  

E.  A patient requesting the performance of an HIV-related test shall be provided an opportunity to remain anonymous by the use of a coded system with no correlation or identification of the individual's identity to the specific test request or results.  A health care provider that is not able to provide HIV-related tests on an anonymous basis shall refer, at no extra charge to the individual seeking anonymity, such individual to a test site that does provide anonymous testing.  The provisions of this Subsection shall not apply to inpatients in hospitals.  

F.  The provisions of Subsections A through E shall not apply to the performance of an HIV-related test:

(1)  By a health care provider or health facility in relation to the procuring, processing, distributing, or use of a human body or a human part, including organs, tissues, eyes, bones, arteries, blood, semen, or other body fluids, for use in medical research or therapy, or for transplantation to individuals, as provided in R.S. 40:1299.142.  

(2)  For purposes of accredited scientific or medical research.  Any testing must be performed in such a manner, however, so that the identity of the test subject remains anonymous and may not be retrieved by any researcher unless specifically authorized.  

(3)  On a deceased person, when the HIV-related test is conducted, to determine the cause of death or for epidemiological purposes.  

(4)  When, in the medical opinion of the physician requesting the HIV-related test, the request for informed consent to perform such test would be medically contraindicated.  

(5)  On any child taken into custody by the Department of Social Services, where department officials have cause to believe that the child has been infected with HIV.  

(6)  On any child when the child's attending physician reasonably believes such test to be necessary in order to properly diagnose or treat the child's medical condition and documents such reason in the child's medical record.  

(7)  On any person who has been arrested, indicted, or convicted for the crimes of aggravated rape, forcible rape, simple rape, or incest when required by a court to undergo an HIV-related test.  

Acts 1991, No. 1054, §1.