An Act To Improve Access to HIV Testing in Health Care Settings
Maine Legislature, Session 123, LD 0429
Committee: Judiciary
Sponsors: MILLER, CAIN, MILLS, WALKER, BARTLETT, DAMON, MARRACHE, STRIMLING
Amends: 5 MRSA §19204-A

Legislative Document 
No. 429 
H.P.345 
House of Representatives, January 29, 2007 
An Act To Improve Access to HIV Testing in Health Care Settings 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Representative MILLER of Somerville. 
1J1~ 
/J?7Jl~ 
MILLICENT M. MacFARLAND 
Clerk 
Cosponsored by Representatives: CAIN of Orono, MILLS of Farmington, WALKER of 
Lincolnville, Senators: BARTLETT of Cumberland, DAMON of Hancock, MARRACHE of 
Kennebec, STRIMLING of Cumberland. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 
MRS A §19203-A, as amended by PL 1999, c. 429, §3, IS further 
amended to read: 
§19203-A. Voluntary informed consent requh·ed 
1. 
Individual tested. 
Except as provided in this section and section 19203, 
subsections 4 and 5, RO persoR ffU\~' perform aR HIV test without first obtaiRiRg the 
\,'ritteR iRformed SORseRt of the perSOR to be tested an HIV test must be voluntary and 
undertaken only with a patient's knowledge and understanding that an HIV test is 
planned. 
A patient must be informed orally or in writing that an HIV test will be 
performed unless the patient declines. Oral or written information required to be given to 
a patient under this subsection must include an explanation of what an HIV infection 
involves and the meaning of positive and negative test results. Informed consent is not 
required for repeated HIV testing by health care providers to monitor the course of 
established infection. AROR)'mOHS test sites HRder seetios 19203 B aFe t:Htempt from the 
re€J:HiremeRt that the iRformed sosseRt be iR writiRg. 
2. Insurers. Persons required to take an HIV test by an insurer, nonprofit hospital or 
medical service organization or nonprofit health care plan must provide their written 
informed consent on forms approved by the Superintendent of Insurance. PFetest aRd 
post test If the test is positive, post-test counseling must be provided by the person or 
organization requesting the test. The Superintendent of Insurance may proflmlgate adopt 
rules to define language requirements of the form. 
3. Access to medical care. Ne A health care provider may not deny any person 
medical treatment or care solely for refusal to give consent for an HIV test. Ne A health 
care provider may not request a person's written consent to an HIV test as a precondition 
to the provision of health care. All written consent to testing 5I:mll must be in accordance 
with section 19201, subsection 5-A. NothiRg iR this This section ffift)' does not prohibit a 
health care provider from recommending an HIV test for diagnostic or treatment 
purposes. Ne A physician or other health care provider may be is not civilly liable for 
failing to have an HIV test performed for diagnostic or treatment purposes if the test was 
recommended and refused in writing by the patient. 
4. 
Occupational exposure. 
Consent need not be obtained when a bona fide 
occupational exposure creates a significant risk of infection pro'/lided that .if a court order 
has been obtained under section 19203-C. The fact that an HIV test was given as a result 
of an occupational exposure and the results of that test may not appear in any records of 
the person whose blood or body fluid is the source of the exposure. Pretest aRd post test 
If the test is positive, post-test counseling must be offered. The subject of the test may 
choose not to be informed about the result of the test. 
4-A. 
Occupational exposure in health care setting. 
When a bona fide 
occupational exposure occurs in a health care setting, authorization to test the source 
patient for HIV must be obtained from that patient if the patient is present or can be 
contacted at the time of exposure and is capable of providing consent. At the time of 
exposure, if the source patient is not present and can not be contacted or is incapacitated, 
then any reasonably available member of the following classes of individuals, in 
descending order of priority, may authorize an HIV test on a blood or tissue sample from 
the source patient: 
A. 
The patient's legal guardian; 
B. 
An individual known to have power of attorney for health care for the patient; 
C. 
An adult relative, by blood, marriage or adoption; 
D. 
An adult with whom the patient has a meaningful social and emotional 
relationship; and 
E. 
A physician who is familiar with occupational exposures to HIV. 
The individual authorizing the HIV test must be informed of the nature, reliability and 
significance of the HIV test and the confidential nature of the test. 
If the person contacted for authorization refuses to authorize the test, the test may not be 
conducted unless consent is obtained from the source patient or from the court pursuant to 
section 19203-C. 
This subsection does not authorize a person described in paragraphs A to D to receive the 
test result. Test results must be given to the exposed person, to a personal physician if 
designated by the exposed person and to either the physician who authorizes the test or 
the health care provider who manages the occupational exposure. 
The patient may choose not to be informed about the result of the HIV test. Without 
express patient authorization, the results of the HIV test and the fact that an HIV test was 
done as a result of an occupational exposure in a health care setting may not appear in the 
patient's health care records. The exposed individual's occupational health care record 
may include documentation of the occupational exposure and, if the record does not 
reveal the source patient's identity, the results of the source patient's HIV test. 
5. Exposure from sexual crime. Consent need not be obtained when a court order 
has been issued under section 1 9203-F . The fact that an HIV test was given as a result of 
the exposure and the results of that test may not appear in a convicted offender's medical 
record. Counseling on risk reduction must be offered, but the convicted offender may 
choose not to be informed about the result of the test unless the court has ordered that the 
convicted offender be infonned of the result. 
Sec. 2. 5 MRSA §19204-A, as amended by PL 2001, c. 647, §§l to 3, is further 
amended to read: 
§19204-A. Counseling new HIV cases 
Except as otherwise provided by this chapter, persons who are the subjeets of test 
positive for HIV tests inf!tction must be offered pretest and post-test counseling. Persons 
who are authorized by section 19203-C or 19203-F to receive test results after exposure 
must be offered counseling regarding the nature, reliability and significance of the HIV 
test and the confidential nature of the test. Persons offered counseling under this section 
I 
may decline the offer by signing a waiver stating that counseling has been offered and is 
being declined. 
1. PFetest eouHseJiHg. "Pretest counseling" must include: 
A.. 
Face to face counseling that includes, at a minimum, a discussion of: 
(1) The nature and reliabilit), of the test being proposed-;-
(2) The person to ',.."hom the results ofthe test ma), be disclosed; 
(3) The pUfllose for 'which the test results ma), be used;-
(4) Any reasonabl), foreseeable risks and benefits resulting from the test; and 
(5) Information on good HIV pre'lenti'le practices and HIV risk reduction plans; 
and 
B. 
An entr), in the medical record of the person being counseled summarizing the 
contents of the discussion concerning at least the topics listed in paragraph ,A" 
I3 
subparagraphs (1) to (5). /', written informed consent form rna)' be used to satisfy the 
requirement in this paragraph if it contains all the required information. A 'Nritten 
consent form does not satisi), the requirement for personal counseling in paragraph A. 
The provider of an HIV test may offer group pretest counseling, but individual counseling 
must Be pro'lided if the suBject of the test req\:lests it. 
2. Post-test counseling. "Post-test counseling" must include: 
A. 
Personal counseling that includes, at a minimum, a discussion of: 
(I) The test results and the reliability and significance of the test results. The 
test provider shall communicate the result confidentially and through personal 
contact; 
(3) Information on good preventive practices and risk reduction plans; and 
(4) Referrals for medical care and information and referrals for support services, 
including social, emotional support and legal services, as needed; 
B. 
An entry in the medical record of the person being counseled summarizing the 
contents ofthe discussion; and 
C. 
The offer of face-to-face counseling. If the subject of the test declines, the 
provider of the test may provide an alternative means of providing the information 
required by paragraph A. 
5. 
Written information to person being counseled. 
To compl)' with the 
requirements of this section regarding pretest counseling, in addition to meeting the 
requirements of sUBsection I, the provider of an HI\' test shall give to the person being 
counseled a written document containing information on the suBjects descriBed in 
sUBsection 1, paragraph A. To comply with the requirements of this section regarding 
post-test counseling, in addition to meeting the requirements of subsection 2, the provider 
of an HIV test shall give to the person being counseled a written document containing 
information on the subjects described in subsection 2, paragraph A. A ,'>'ritten consent 
form or other~·used to meet one or both of the requirements for 
information pursloJant to this subsection if the form or document contains all the 
information required for the type of counseling being offered. 
SUMMARY 
This bill amends HIV testing law by replacing the requirement for obtaining a 
patient's written informed consent before an HIV test to requiring a test be undertaken 
only with a patient's knowledge and understanding that an HIV test is planned, by 
removing the requirement for pretest counseling and by requiring that a positive test 
result must be confidentially given through personal contact.