KRS § 214.181 — KY Code / Title XVIII / Chapter 214 / Section 214.181
214.181 Legislative findings -- General consent to testing for HIV -- Emergency procedures -- Disclosures of test results -- Voluntary testing programs in each county
Status: in_force

214.181 Legislative findings -- General consent to testing for HIV -- Emergency

procedures -- Disclosures of test results -- Voluntary testing programs in each

county.

(1) 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 knowledge of HIV

status is increasingly important for all persons since treatment using antiretroviral

medications can slow disease progression, prolong and improve the lives of HIV-

positive individuals, and reduce the likelihood of perinatal mother-to-child

transmission. 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.

(2) 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)(d) 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.

(3) 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.

(4) The physician or advanced practice registered nurse who orders the test pursuant to

subsections (1) and (2) of this section, or the attending physician, or designee, 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 or designee, 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.

(5) (a) No person in this state shall perform a test designed to identify the human

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.

(b) 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.

(c) 1. Nothing in this subsection shall be construed as prohibiting the

disclosure to the patient of preliminary positive results from HIV rapid

tests if results are delivered with an explanation of the following:

a. The meaning of a reactive rapid test;

b. The importance of confirmatory testing; and

c. The importance of taking precautions to reduce the risk of

infecting others while awaiting the results of confirmatory testing.

2. In special cases where immediate actions may be necessary to protect a

patient, such as potential perinatal transmission or incidents warranting

post-exposure prophylaxis, a preliminary positive result from a HIV

rapid test may be disclosed to the patient and used as a basis to

recommend options for prophylaxis or treatment.

(d) 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 the effective date of this section 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 person allowed access by a court order that 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 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 or she 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;

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 that 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.

(6) (a) 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 212. Additional programs

may be contracted to other private providers to the extent that finances permit

and local circumstances dictate.

(b) 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 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 under 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.

(7) No public health department and no other private or public facility shall be

established for the primary purpose of 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, 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.