House Bill No. 558

Introduced By smith, bergman, brainard, orr, molnar, simpkins, jore, curtiss, adams, beaudry, wells, knox, keating, hargrove, keenan, arnott, ahner, walters, hayne, holland, estrada



A Bill for an Act entitled: "An Act directing the department of public health and human services to treat HIV infection in the same manner as other communicable and DISEASES, INCLUDING sexually transmitted diseases; removing the written informed consent requirement from the AIDS Prevention Act THAT INFORMED CONSENT BE IN WRITING; DEFINING "INFORMED CONSENT"; and amending sections 50-16-1003 and 50-16-1007, MCA."



Be it enacted by the Legislature of the State of Montana:



NEW SECTION. Section 1.  AIDS, HIV-related conditions, and HIV infection to be treated as other communicable diseases. It is the intent of the legislature to treat AIDS, HIV-related conditions, and HIV infection in the same manner as other communicable and DISEASES, INCLUDING sexually transmitted diseases, BY ADOPTING THE MOST CURRENTLY ACCEPTED PUBLIC HEALTH PRACTICES with regard to testing, reporting, partner notification, and disease intervention. NOTHING IN THIS SECTION IS INTENDED TO PROHIBIT THE DEPARTMENT FROM ALLOWING TESTING FOR HIV INFECTION TO BE PERFORMED AND REPORTED WITHOUT IDENTIFICATION OF THE SUBJECT OF THE TEST. The department shall adopt rules, as provided in 50-1-202, to reflect this policy.



Section 2.  Section 50-16-1003, MCA, is amended to read:

"50-16-1003.   Definitions. As used in this part, the following definitions apply:

(1)  "AIDS" means acquired immune deficiency syndrome as further defined by the department in accordance with standards promulgated by the centers for disease control of the United States public health service.

(2)  "Contact" means:

(a)  an individual identified by the subject of an HIV-related test as a past or present sexual partner or as a person with whom the subject has shared hypodermic needles or syringes; or

(b)  any other a person who has been exposed to the test subject in a manner, voluntary or involuntary, that may allow HIV transmission in accordance with modes of transmission recognized by the centers for disease control of the United States public health service.

(3)  "Department" means the department of public health and human services provided for in 2-15-2201.

(4)  "Health care facility" means a health care institution, private or public, including but not limited to a hospital, nursing home, clinic, blood bank, blood center, sperm bank, or laboratory.

(5)  "Health care provider" means a person who is licensed, certified, or otherwise authorized by the laws of this state to provide health care in the ordinary course of business or practice of a profession. The term does not include a person who provides health care solely through the sale or dispensing of drugs or medical devices.

(6)  "HIV" means the human immunodeficiency virus, identified as the causative agent of AIDS, and all HIV and HIV-related viruses that damage the cellular branch of the human immune or neurological systems and leave the infected person immunodeficient or neurologically impaired.

(7)  "HIV-related condition" means a chronic disease resulting from infection with HIV, including but not limited to AIDS and asymptomatic seropositivity for HIV.

(8)  "HIV-related test" means a test approved by the federal food and drug administration, including but not limited to an enzyme immunoassay and a western blot, that is designed to detect the presence of HIV or antibodies to HIV.

(9) "INFORMED CONSENT" MEANS A FREELY EXECUTED ORAL OR WRITTEN GRANT OF PERMISSION BY THE SUBJECT OF AN HIV-RELATED TEST, BY THE SUBJECT'S LEGAL GUARDIAN, OR, IF THERE IS NO LEGAL GUARDIAN AND THE SUBJECT OF THE TEST IS UNCONSCIOUS OR OTHERWISE MENTALLY INCAPACITATED, BY THE SUBJECT'S NEXT OF KIN OR SIGNIFICANT OTHER OR A PERSON DESIGNATED BY THE SUBJECT IN HOSPITAL RECORDS TO ACT ON THE PERSON'S BEHALF TO PERFORM AN HIV-RELATED TEST AFTER THE RECEIPT OF PRETEST COUNSELING.

(9)(10)  "Legal guardian" means a person appointed by a court to assume legal authority for another who has been found incapacitated or, in the case of a minor, a person who has legal custody of the minor.

(10)(11) "Local board" means a county, city, city-county, or district board of health.

(11)(12) "Local health officer" means a county, city, city-county, or district health officer appointed by the local board.

(12)(13) "Next of kin" means an individual who is a parent, adult child, grandparent, adult sibling, or legal spouse of a person.

(13)(14) "Person" means an individual, corporation, organization, or other legal entity.

(14)(15) "Posttest counseling" means counseling, conducted at the time that the HIV-related test results are given, and includes, at a minimum, written materials provided by the department.

(15)(16) "Pretest counseling" means the provision of counseling to the subject prior to conduct of an HIV-related test, including, at a minimum, written materials developed and provided by the department.

(16)(17) "Release of test results" means a written authorization for disclosure of HIV-related test results that:

(a)  is signed and dated by the person tested or the person authorized to act for the person tested; and

(b)  specifies the nature of the information to be disclosed and to whom disclosure is authorized.

(17)(18) "Significant other" means an individual living in a current spousal relationship with another individual but who is not legally a spouse of that individual.

(18) (a) "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 unconscious or otherwise mentally incapacitated, by the subject's next of kin or significant other or a person designated by the subject in hospital records to act on the subject's behalf. The written informed consent must include at least the following:

(i)  an explanation of the test, including its purpose, potential uses, limitations, and the meaning of its results;

(ii) an explanation of the procedures to be followed for confidentiality, blood drawing, and counseling, including notification that the test is voluntary and that consent may be withdrawn at any time until the blood sample is taken;

(iii) an explanation of whether and to whom the subject's name and test results may be disclosed;

(iv) a statement that the test may be obtained anonymously if the subject wishes;

(v)  the name and address of a health care provider whom the subject approves to receive the subject's test results and to provide the subject with posttest counseling; and

(vi) if the consent is for a test being performed as part of an application for insurance, a statement that only a positive test result will be reported to the designated health care provider and that negative test results may be obtained by the subject from the insurance company.

(b)  The department shall develop an agreement form that may be used for purposes of this subsection."



Section 3.  Section 50-16-1007, MCA, is amended to read:

"50-16-1007.   Testing -- counseling -- informed INFORMED consent -- penalty. (1) An HIV-related test may be ordered only by a health care provider and only after receiving the written informed 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 gives INFORMED consent, the health care provider ordering the test or the provider's designee must shall 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 the AFTER GIVING 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 that 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 shall OBTAIN THE INFORMED CONSENT IN WRITING AND 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 INFORMED consent in accordance with guidelines of the centers for disease control for an HIV-related test of the patient. If written informed 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 (10), "written informed consent" "consent" "INFORMED CONSENT" means an agreement in writing that is freely executed, either orally or in writing, 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."



NEW SECTION. Section 4.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 50, chapter 16, part 10, and the provisions of Title 50, chapter 16, part 10, apply to [section 1].

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