50-16-1007. Testing -- counseling -- informed consent -- penalty. (1) An HIV-related test may be ordered only by a health care provider and only after receiving the written informed consent of:
(a) the subject of the test;
(b) the subject's legal guardian;
(c) the subject's next of kin or significant other if:
(i) the subject is unconscious or otherwise mentally incapacitated;
(ii) there is no legal guardian;
(iii) there are medical indications of an HIV-related condition; and
(iv) the test is advisable in order to determine the proper course of treatment of the subject; or
(d) the subject's next of kin or significant other or the person, if any, designated by the subject in hospital records to act on the subject's behalf if:
(i) the subject is in a hospital; and
(ii) the circumstances in subsections (1)(c)(i) through (1)(c)(iv) exist.
(2) When a health care provider orders an HIV-related test, the provider also certifies that informed consent has been received prior to ordering an HIV-related test.
(3) Before the subject of the test executes an informed consent agreement, the health care provider ordering the test or the provider's designee must give pretest counseling to:
(a) the subject;
(b) the subject's legal guardian;
(c) the subject's next of kin or significant other if:
(i) the subject is unconscious or otherwise mentally incapacitated; and
(ii) there is no guardian; or
(d) the subject's next of kin or significant other or the person, if any, designated by the subject in hospital records to act on the subject's behalf if:
(i) the subject is in the hospital; and
(ii) the circumstances in subsections (1)(c)(i) and (1)(c)(ii) exist.
(4) A health care provider who does not provide HIV-related tests on an anonymous basis shall inform each person who wishes to be tested that anonymous testing is available at one of the counseling-testing sites established by the department, or elsewhere.
(5) The subject of an HIV-related test or any of the subject's representatives authorized by subsection (1) to act in the subject's stead shall designate, as part of a written informed consent, a health care provider to receive the results of an HIV-related test. The designated health care provider shall inform the subject or the subject's representative of the results in person.
(6) At the time the subject of a test or the subject's representative is given the test results, the health care provider or the provider's designee shall give the subject or the subject's representative posttest counseling.
(7) If a test is performed as part of an application for insurance, the insurance company must ensure that:
(a) negative results can be obtained by the subject or the subject's representative upon request; and
(b) positive results are returned to the health care provider designated by the subject or the subject's representative.
(8) A minor may consent or refuse to consent to be the subject of an HIV-related test, pursuant to 41-1-402.
(9) Subsections (1) through (6) do not apply to:
(a) the performance of an HIV-related test by a health care provider or health care facility that procures, processes, distributes, or uses a human body part donated for a purpose specified under Title 72, chapter 17, if the test is necessary to assure medical acceptability of the gift for the purposes intended;
(b) the performance of an HIV-related test for the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher;
(c) the performance of an HIV-related test when:
(i) the subject of the test is unconscious or otherwise mentally incapacitated;
(ii) there are medical indications of an HIV-related condition;
(iii) the test is advisable in order to determine the proper course of treatment of the subject; and
(iv) none of the individuals listed in subsection (1)(b), (1)(c), or (1)(d) exists or is available within a reasonable time after the test is determined to be advisable; or
(d) the performance of an HIV-related test conducted pursuant to 50-18-107 or 50-18-108, with the exception that the pretest and posttest counseling must still be given.
(10) (a) If an agent or employee of a health care facility, a health care provider with privileges at the health care facility, or a person providing emergency services who is described in 50-16-702 has been voluntarily or involuntarily exposed to a patient in a manner that may allow infection by HIV by a mode of transmission recognized by the centers for disease control of the United States public health service, the physician of the patient shall, upon request of the exposed person, notify the patient of the exposure and seek written informed consent in accordance with guidelines of the centers for disease control for an HIV-related test of the patient. If written informed consent cannot be obtained, the health care facility, in accordance with the infectious disease exposure guidelines of the health care facility, may, without the consent of the patient, conduct the test on previously drawn blood or previously collected bodily fluids to determine if the patient is in fact infected. A health care facility is not required to perform a test authorized in this subsection. If a test is conducted pursuant to this subsection, the health care facility shall inform the patient of the results and provide the patient with posttest counseling. The patient may not be charged for a test performed pursuant to this subsection. The results of a test performed pursuant to this subsection may not be made part of the patient's record and are subject to 50-16-1009(1).
(b) For the purposes of this subsection, "written informed consent" means an agreement in writing that is freely executed by the subject of an HIV-related test, by the subject's legal guardian, or, if there is no legal guardian and the subject is incapacitated, by the subject's next of kin, significant other, or a person designated by the subject in hospital records to act on the subject's behalf.
(11) A knowing or purposeful violation of this section is a misdemeanor punishable by a fine of $1,000 or imprisonment for up to 6 months, or both.
History: En. Sec. 4, Ch. 614, L. 1989; amd. Sec. 2, Ch. 544, L. 1991; amd. Sec. 6, Ch. 476, L. 1993.
