What are the HIV testing, consent, and disclosure laws?
For most individuals outside the criminal justice system, the decision to test
for HIV infection is a voluntary one. In some situations, such as for employment or health insurance, mandatory testing is specifically
prohibited. In other situations, such as for pregnant women, testing is voluntary but HIV information and/or testing must be offered.
This section discusses those situations, the types of voluntary testing available, and the laws governing consent for testing and
disclosure of test results.
PROHIBITIONS AGAINST MANDATORY TESTING
Employment
Health and Safety Code Section 120980 prohibits the
use of HIV testing to determine suitability for employment.
Insurance
Health and Safety Code Section 120980 also prohibits insurance
providers from using an HIV test as a prerequisite to obtaining insurance. Health and Safety Code Section 1389.1 requires that health
insurance applications carry a prominently displayed notice that California law prohibits health care service plans from requiring
or using an HIV test as a condition of obtaining coverage. Insurance Code Sections 799-799.10 allow an exception for life and disability
income insurance.
MANDATORY OFFERING OF HIV/AIDS INFORMATION AND/OR TESTING
Marriage
An HIV test is not required prior to obtaining a
marriage license in California. However, Family Code Section 358 requires that information concerning AIDS and the availability of
HIV testing be distributed to marriage license applicants.
Pregnant Women
Health and Safety Code Section 125107 requires prenatal care
providers to offer HIV information and counseling to every pregnant patient for whose prenatal care the provider has primary responsibility.
In addition, the provider must offer an HIV test to every pregnant patient unless the patient already has a documented positive test
result or AIDS. The provider must document in the patient’s medical record that both counseling and testing have been offered.
ANONYMOUS
TESTING
In anonymous HIV testing, the identity of the test subject is not linked to the test result. In accordance with Health and
Safety Code Sections 120885-120895, anonymous testing is available at Alternative Test Sites (ATS) administered by county health departments.
HIV tests at these sites are free and test site counselors do not collect any identifying information (e.g., name, Social Security
Number, driver’s license, etc.) from test subjects. Instead, test subjects receive a unique number that corresponds to their specimen
and test result. Health and Safety Code Section 120895 requires that, at a minimum, individuals testing at an ATS be informed about
the validity and accuracy of the HIV antibody test before it is performed, and that the results of this test be given in person. Anonymous
testing is also available in some clinical settings other than an ATS; for example, some family planning and sexually transmitted
disease clinics.
CONFIDENTIAL TESTING
In contrast to anonymous testing, confidential testing links the test subject’s identity to the
test result. However, the confidentiality of test results is specifically protected by California law, which prohibits unauthorized
disclosure (see “Disclosure of Test Results”). Confidential testing is available at publicly-funded confidential test sites as well
as private health care settings. To protect the privacy of individuals taking an HIV test, Health and Safety Code Section 120975 provides
that no person shall be compelled in any civil, criminal, administrative, legislative, or other proceeding to identify any individual
who takes an HIV test.
RAPID HIV TESTING
Section 120917 of the Health and Safety Code authorizes participation by the Department of
Health Services, Office of AIDS in a rapid HIV test research program conducted with the federal Centers for Disease Control and Prevention.
In Department-designated HIV counseling and testing sites, an HIV counselor who is trained by the Office of AIDS may, under identified
conditions, perform any HIV test that is classified as waived under the federal Clinical Laboratory Improvement Act. A rapid HIV test
is a screening test that produces results quickly enough to allow for same-day results to be given to the patient. Under the rapid
HIV test research program, the Department may perform and report clinical test results using a rapid HIV test for diagnosis, prior
to test approval by the federal Food and Drug Administration. A second, approved test shall be used to confirm initially reactive
test results.
CONSENT REQUIRED FOR TESTING
In General
Except in the case of a treating physician and surgeon, Health and Safety Code
Section 120990 requires written consent for HIV testing. The statute requires a treating physician and surgeon to obtain informed
consent for HIV testing. Health and Safety Code Section 120990 requires specific consent for HIV testing - a general consent for medical
care is not sufficient.
At an Alternative Test Site
Health and Safety Code Section 120990 does not apply to tests performed at an ATS,
tests on a cadaver, donated body or organs, or blood tested anonymously as part of a scientific investigation. As previously noted,
Health and Safety Code Section 120895 requires that individuals testing at an ATS be informed about the validity and accuracy of the
antibody test before it is performed.
DISCLOSURE OF TEST RESULTS
Laboratory Test Results
Section 123148 of the Health and Safety Code
permits certain laboratory test results to be posted on the Internet or other electronic method if requested by the patient and deemed appropriate
by the health care provider who ordered the test. Consent of the patient is to be obtained in a manner consistent with requirements
of Section 56.11 of the Civil Code. The electronic delivery of clinical laboratory test results or any other related results for HIV
antibody tests are specifically prohibited under this statute, regardless of authorization.
Written Authorization Requirements
Health
and Safety Code Section 120980 requires that persons responsible for the care and treatment of an individual who takes an HIV test
obtain written authorization prior to any disclosure of the individual’s test results in an identifying manner. This statute requires
a separate written authorization for each disclosure, and must state to whom the results will be disclosed. Further, the statute provides
for a civil penalty of up to $1,000 for each negligent unauthorized disclosure and $1,000-$5,000 for each willful disclosure. A negligent
or willful disclosure that results in economic, bodily, or psychological harm to the test subject is a misdemeanor punishable by imprisonment
of up to one year and/or a fine of up to $10,000.
Physician Exceptions to Written Authorization Requirements
Inclusion of a person’s
HIV test result in his/her medical record is not considered a disclosure under Health and Safety Code Section 120980. Health and Safety
Code Section 120985 permits a physician who orders an HIV test to record the results in the patient’s medical record, or otherwise
disclose it without written authorization to the patient’s health care providers for the purpose of diagnosis, care, or treatment
of that patient. Recording or disclosing test results in accordance with Section 120985 does not authorize further disclosure unless
otherwise permitted by law. Providers of health care are to be defined as in Civil Code Section 56.05(d), with the exclusion of group
practice pre-paid health care service plans.
Partner Notification Exception to Written Authorization Requirements
Health and Safety
Code Section 121015 permits (but does not require) a treating physician and surgeon to disclose an individual’s confirmed positive
HIV test result to the local health officer, the individual’s spouse, or any person reasonably believed to be the sexual or needle-sharing
partner of the individual. Such disclosure may be made only for the purpose of diagnosis, care, and treatment of the person notified
or to interrupt the chain of HIV transmission. The disclosure must not include any identifying information about the HIV-infected
individual.
Prior to disclosing an individual’s test result, the physician and surgeon must discuss the results with the patient and
offer appropriate emotional and psychological counseling, including information on the risks of transmitting HIV and methods of avoiding
those risks. Further, the physician and surgeon must inform the patient of the intent to notify partners and must attempt to obtain
the patient’s voluntary consent for partner notification. Upon notifying a spouse or partner of an HIV infected person, the physician
and surgeon must refer the spouse or partner for appropriate care, counseling, and follow-up.
County health officers may notify a spouse or partner of an HIV-infected individual but cannot identify the person or the physician and surgeon making the report. As with physicians and surgeons, county health officers must refer the spouse or partner for appropriate care and follow-up. Upon completion of partner notification efforts, all records regarding the contacted person maintained by the county health officer, including but not limited to identifying information, must be expunged. For as long as records of contact are maintained, the county health officer must keep confidential the identity and HIV status of the individual tested as well as the identity of the persons contacted.
