An Act to Protect Health Care Workers from HIV
Maine Legislature, Session 131, LD 2075
Committee: Health Coverage, Insurance and Financial Services
Sponsors: PERRY
Amends: 5 MRSA §19203-A

Legislative Document
No. 2075
H.P. 1334
House of Representatives, December 22, 2023
An Act to Protect Health Care Workers from HIV
(EMERGENCY)
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
203.
Received by the Clerk of the House on December 20, 2023.  Referred to the Committee on 
Health Coverage, Insurance and Financial Services pursuant to Joint Rule 308.2 and ordered 
printed pursuant to Joint Rule 401.
ROBERT B. HUNT
Clerk
Presented by Representative PERRY of Calais.
Emergency preamble.  Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, health care workers who are exposed to bodily fluids from patients are at 
high risk of infection; and
Whereas, it is imperative that appropriate treatment following exposure be started as 
soon as possible, which requires knowledge of the pathogen to which the health care worker 
may have been exposed; and
Whereas, this legislation allows for a more rapid determination of whether a patient 
may be positive for HIV and is necessary as quickly as possible to protect the health care 
workers in the State; and
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  5 MRSA §19203-A, sub-§4-A, as enacted by PL 1999, c. 429, §3, is 
amended to read:
4-A.  Occupational exposure in health care setting.  When a bona fide occupational 
exposure occurs in a health care setting, a legal representative or administrator of that health 
care setting shall seek 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 cannot be contacted or is incapacitated, then any reasonably available member 
of the following classes of individuals who is present, 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 explicitly 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.
Sec. 2.  5 MRSA §19203-A, sub-§4-B is enacted to read:
4-B.  Test without consent.  An HIV test may be administered without consent or 
authorization if consent has not been obtained following a good faith effort to obtain 
consent and at least 8 hours have passed since exposure because:
A.  The source patient is incapacitated or is determined by that patient's attending health 
care provider to lack the mental capacity to provide such consent;
B.  The source patient is not expected to recover in time for the person who is exposed 
to receive appropriate medical treatment; and
C.  There is not a person immediately available who has legal authority to consent in 
time for the person who is exposed to receive appropriate medical treatment.
All other provisions of subsection 4-A regarding the administration of the HIV test and the 
results and documentation of the HIV testing apply to an HIV test conducted pursuant to 
this subsection.
Emergency clause.  In view of the emergency cited in the preamble, this legislation 
takes effect when approved.
SUMMARY
Under current law, if a person, while in the course of employment in a health care 
setting or as an emergency services worker, is exposed to potentially infectious blood or 
other bodily fluids of a patient in the course of employment, consent is required of the 
patient before a test for HIV may be performed.  Consent may be provided by certain other 
individuals if the patient is not present and cannot be contacted or is incapacitated.
This bill clarifies that the consent must be sought by a legal representative or 
administrator of the health care setting and that another individual who can authorize 
consent must be present.  This bill also allows an HIV test to be conducted without consent 
if, despite a good faith effort to obtain consent, at least 8 hours have passed since exposure 
and:
1.  The patient is incapacitated or is determined by that patient's attending health care 
provider to lack the mental capacity to provide such consent;
2.  The patient is not expected to recover in time for the person who is exposed to 
receive appropriate medical treatment; and
3.  There is not a person immediately available who has legal authority to consent in 
time for the person who is exposed to receive appropriate medical treatment.