Gen. 225] 225

 An “institution” is a hospital or a “lodging facility.” HG §18- 1

202(a).

HEALTH ) COMMUNICABLE DISEASES — LABORATORIES —

ANONYMOUS HIV TEST SITES REMAIN PERMISSIBLE

July 26, 1993

The Honorable Paula C. Hollinger

Maryland Senate

You have requested our opinion whether Chapter 66 (House

Bill 460) of the Laws of Maryland 1992 requires anonymous testing

sites to obtain and report to the county health officer a unique patient

identifying number for those who seek to be tested for the human

immunodeficiency virus (“HIV”). The question, in other words, is

whether all test centers, even those that would prefer not to obtain

the identifying number, must do so as a prerequisite to testing for

HIV.

For the reasons set forth below, we conclude that Chapter 66

does not bar a test center from obtaining a blood specimen from a

patient who declines to provide the information needed for the

unique patient identifier, nor does the statute preclude a laboratory

from testing a specimen that arrives at the laboratory without the

unique patient identifier. 

I

Background

Under §18-201(a) of the Health-General Article (“HG”

Article), a physician is required to report, by “name, age, race, sex,

and residence address of the patient,” any “infectious or contagious

disease that endangers public health ....” HG §18-202 requires the

same kind of reporting by “institutions.” Finally, HG §18-205(a) 1

requires a medical laboratory director to report an individual by

name to the health officer of the county where the laboratory is

located within 48 hours after an examination if a specimen from that
226 [78 Op. Att’y

 A low CD 4+ count suggests that the individual tested is 2

immunosuppressed, i.e., the person’s immune system is compromised and

not fully functional. Immunosuppression may indicate HIV infection, but

it is not conclusive, because other diseases and conditions may cause

immunosuppression. Centers for Disease Control, Guidelines for the

Performance of CD 4+ T-Cell Determinations in Persons with Human

Immunodeficiency Virus Infection, 41 Morbidity and Mortality Weekly

Rep. No. RR-8 (May 8, 1992).

individual shows evidence of certain specified contagious diseases

(for example, gonorrhea, viral hepatitis type A, and tuberculosis).

Although HIV infection, the precursor to AIDS, is also an infectious

disease, current law establishes a quite different rule with regard to

the reporting of HIV test results: “The director of a medical

laboratory in which serum samples are tested for human

immunodeficiency virus may not disclose, directly or indirectly, the

identity of any individual tested for human immunodeficiency virus

in any report ....” HG §18-207(d).

Chapter 66, effective October 1, 1993, adds HIV infection and

“CD 4+ count, if less than 200/MM3,” to the list of conditions that

must be reported under HG §18-205. As explained in more detail 2

in Part II below, Chapter 66 does not permit the report to contain the

name of individuals with a low CD 4+ count or HIV infection.

Rather, Chapter 66 specifies that the report is to contain a “unique

patient identification number,” the use of which is intended to

facilitate epidemiological analysis of HIV infection and yet to

preserve confidentiality.

As we understand present HIV testing practices, a person may

have a test performed either confidentially or anonymously. As

defined in the regulations governing HIV testing, confidential testing

means that “a person uses the person’s name as identification and

that the person’s medical records contain the person’s name but are

protected against disclosure as provided in the Annotated Code of

Maryland.” COMAR 10.52.08.02B(2). Anonymous testing, on the

other hand, means “that a person does not use the person’s name as

identification and can only be identified through use of an assigned

patient identifying number.” COMAR 10.52.08.02B(1). This patient

identifying number is a randomly assigned number that is different

from the “unique patient identifying number” established under

Chapter 66. The random number used in anonymous testing cannot

be traced to the patient; the unique patient identifying number,
Gen. 225] 227

 Subtitle 3 of HG Title 4 contains extensive requirements governing 3

the confidentiality of medical records. A medical laboratory director,

moreover, is prohibited from compiling or distributing a list of named

patients who have tested positive for HIV or who have a low CD 4+ count.

HG §18-205(h)(2) (as amended by Chapter 156 (House Bill 375) of the

Laws of Maryland 1993).

although not itself revealing the patient’s identity, will contain

elements that might be traceable to the patient. 

The purpose behind anonymous testing is to encourage people

to be tested without fear of losing insurance or employment or

experiencing repercussions from family members or others should

the fact of the test or its result become publicly known despite

confidentiality requirements. Virtually all of the test sites in 3

Maryland perform both confidential and anonymous testing. For

some test sites, the provision of anonymous testing is a condition

essential to the continued funding of the site. For example, we are

aware of one such clinic in Landover, which is funded by the U.S.

Centers for Disease Control.

Against this background, the question has arisen whether a test

site may continue to offer anonymous testing after Chapter 66 takes

effect on October 1, 1993. 

II

The Evolution of House Bill 460 Into Chapter 66

HG §18-205 sets forth certain requirements for the reporting

of contagious diseases. It requires the director of a medical

laboratory to file a report of certain contagious conditions with the

local health officer. Specifically, the report must include the “name,

age, sex, and residence address of the patient from whom the

specimen was taken.” HG §18-205(b)(ii)2. This requirement

parallels those applicable to physicians and institutions. See HG

§§18-201(b)(3) and 18-202(c)(1).

As originally introduced, House Bill 460 added HIV infection

and low CD 4+ count to the list of reportable conditions. Thus,

initially, House Bill 460 recognized no distinction between the
228 [78 Op. Att’y

 Virtually identical legislation was introduced in the 1993 Session. 4

See House Bill 416 and Senate Bill 336. Neither bill passed.

reporting of HIV infection and the reporting of other contagious

diseases – all reports would identify the patient by name. 

The only exception to House Bill 460’s requirement of

reporting by name called for the Department of Health and Mental

Hygiene (“DHMH”) to “designate at least 5 test sites evenly

dispersed throughout Maryland that perform HIV tests as

anonymous test sites.” The bill went on to provide that “the identity

of the subject of an HIV test performed at an anonymous test site ...

may not be disclosed.” As explained in the floor report

accompanying the bill, the purpose of this provision was as follows:

In order to effectively control the spread

of HIV infection, public health programs must

target the populations and areas where the

infection occurs with education and treatment

programs. The best way to do this is to

provide anonymous testing sites where high

risk persons may be tested and provide

demographic information without revealing

their identities.

Studies have demonstrated that many high

risk populations do not get tested because they

are afraid their identity will become public

and discrimination will result. This bill will

allow these persons to be tested without

revealing their names, while providing critical

information concerning the spread of the

disease. 

The bill also repealed the confidentiality requirement of HG

§18-207. Thus, as originally introduced, the only provision for 4

anonymous HIV testing in House Bill 460 was the designation of the

five anonymous test centers. 

During consideration by the House and Senate, House Bill 460

underwent several significant amendments. First, and most notably,

an exception to the name reporting requirement under HG §18-205
Gen. 225] 229

As enacted, Chapter 66 requires DHMH to develop a unique 5

patient identifying number system to be implemented October 1, 1993. In

developing the system, DHMH is to “consider the use of identifiers

commonly available to health care providers” and is to “consult with the

Medical and Chirurgical Faculty of Maryland, the Maryland Hospital

Association, the Governor’s Council on HIV Prevention and Treatment,

AIDS advocacy groups, and any other organizations it deems appropriate.”

 The collection of this information may help to control the spread 6

of HIV infection and also may increase the amount of federal AIDSrelated funding that the State receives.

This uncertainty is illustrated by the fact that legislation, House 7

Bill 907, was introduced during the 1993 Session to make explicit that

anonymous test centers were not required to use the unique patient

identifying number. On the other hand, House Bill 480, also introduced

in the 1993 Session, would have required anonymous test sites to use the

unique patient identifying number. Neither bill passed. 

was created. Specifically, HG §18-205 was amended to provide that

“reports of human immunodeficiency virus infection and CD 4+

count under 200/MM3 [shall state] the unique patient identifying

number, age, sex, and zip code of residence of the patient ....” HG

§18-205(b)(1)(ii)B (emphasis added). Conforming changes were 5

made to the reporting obligations of physicians and institutions: In

the case of “asymptomatic [HIV] infection,” they too are to report

not by name but rather by unique patient identifier. HG §§18-

201(b)(3)(ii) and 18-202(c)(1)(ii). At the same time, the provision

for the establishment of five anonymous test centers was deleted,

and the confidentiality requirement of HG §18-207 was restored. 

These amendments to House Bill 460 suggest strongly that the

General Assembly sought to find a compromise that balanced the

privacy interests of persons being tested against the public health

policy interest in the collection of accurate demographic data

concerning HIV cases. What is not at all clear from the 6

amendments, however, is how the General Assembly intended the

new reporting requirements to apply to anonymous tests sites. We

7

turn now to an analysis of that issue. 
230 [78 Op. Att’y

III

Nature of Reporting Requirements

In determining whether the General Assembly intended the

unique patient identifier to be used with specimens obtained at an

anonymous test site, we look first to the language of the statute

itself. Obviously, “what the legislature has written in an effort to

achieve a goal is a natural ingredient of analysis to determine that

goal.” Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525

A.2d 628 (1987). Likewise, the General Assembly’s failure to

include language in a statute is at least initially suggestive of a

legislative decision not to pursue an objective.

Chapter 66 simply does not address reporting by anonymous

test sites. It does not say that test sites must solicit or obtain any

particular information. It does not say that test sites are prohibited

from submitting blood for an HIV test without the unique patient

identifier. Nor does anything in the legislative record reflect these

objectives in a manner suggesting an inadvertent omission from the

statutory text. Cf. Kaczorowski, 309 Md. at 518-20 (evidence of

“patent drafting error”).

To be sure, it can be argued that the deletion of the requirement

that DHMH designate five anonymous test sites, contained in the

first reader version of House Bill 460, is evidence of the General

Assembly’s intent to require all test sites to use the unique patient

identifier. The law as ultimately enacted, however, simply makes no

reference to test sites themselves. On the basis of a bare inference

alone, we are unwilling to impose a requirement on test sites that is

nowhere to be found in the statutory text and nowhere discussed as

an objective in the legislative history.

Chapter 66 did legislate requirements applicable to physicians

and laboratory directors. We turn to those requirements to see

whether they require a person seeking an HIV test to disclose the

elements of a unique patient identifier as a prerequisite to getting the

test. 

The typical patient at an anonymous test site has not been

referred to the site by a physician. Nevertheless, some physician

necessarily has ultimate responsibility for the practices at the test
Gen. 225] 231

site. Unless the person drawing the blood is the designee of a

physician, he or she would be engaging in the unauthorized practice

of medicine by drawing blood for diagnostic purposes. See §14-

101(j) of the Health Occupations Article. Moreover, a laboratory

performs an HIV test pursuant to a proper medical order to do so.

See HG §17-202.1(c); COMAR 10.52.08.04A. 

So, as we see it, the physician who supervises the test site is the

physician of the patients who seek to be tested there, at least for that

limited purpose. The first issue, then, is the obligation that Chapter

66 imposes on that physician.

When a patient walks into a test site to have blood drawn, the

physician in charge of the site will ordinarily have no “reason to

suspect that a patient under the physician’s care has an infectious or

contagious disease that endangers public health ....” HG §18-201(a).

If a patient has “asymptomatic [HIV] infection,” as distinct from

AIDS, the only way to know whether the patient has the disease is

to test the patient’s blood for the presence of antibodies. Before a

positive test result is known, the physician has nothing to report, and

the law imposes no obligation on the physician to obtain unique

identifying information in anticipation of a possible future report.

Nor does the law prohibit the physician from drawing blood (through

a designee) and ordering the test without obtaining the information.

When a blood specimen from an anonymous test site arrives at

a laboratory without the unique patient identifier, does Chapter 66

prohibit the laboratory from testing the specimen? The statute does

not expressly impose that prohibition, and we do not believe that so

significant an interference in the physician-patient relationship )

preventing the physician’s order for the test from being carried out

) is properly inferred, at least in the absence of explicit legislative

history identifying this intended result. A laboratory director, in our

view, may test all specimens received in accordance with appropriate

procedures. If the test is positive for HIV, the director must report

whatever information itemized in HG §18-205(b)(ii) is available to

the director. The director cannot report what has not been provided.
232 [78 Op. Att’y

 We have no occasion in this opinion to consider the effect of any 8

regulations that DHMH might adopt to implement Chapter 66.

In short, Chapter 66 does not prevent the operation of sites for

anonymous HIV testing.8

IV

Conclusion

In summary, it is our opinion that: 

1. A center may take a blood specimen for purposes of HIV

testing even if a patient declines to provide the information needed

to create a unique patient identifying number. 

2. A laboratory director may test a blood specimen for HIV

even if the specimen is not accompanied by a unique patient

identifying number. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

Opinions & Advice

Mary O’Malley Lunden

Assistant Attorney General

Geoffrey J. C. Boyd

Assistant Attorney General