GA Code § 31-22-9.1 (2021)
2021 Georgia Code|Title 31 - Health|Chapter 22 - Clinical Laboratories|§ 31-22-9.1. Hiv Tests - Who May Perform Test

  As used in this Code section, the term:   "AIDS" means Acquired Immunodeficiency Syndrome or AIDS Related Complex within the reporting criteria of the department.   "AIDS confidential information" means information which discloses that a person:   Has been diagnosed as having AIDS;   Has been or is being treated for AIDS;   Has been determined to be infected with HIV;   Has submitted to an HIV test;   Has had a positive or negative result from an HIV test;   Has sought and received counseling regarding AIDS; or   Has been determined to be a person at risk of being infected with HIV,  and which permits the identification of that person.      "AIDS transmitting crime" means any of the following offenses specified in Title 16:   Rape;   Sodomy;   Aggravated sodomy;   Child molestation;   Aggravated child molestation;   Prostitution;   Solicitation of sodomy;   Incest;   Statutory rape; or   Any offense involving a violation of Article 2 of Chapter 13 of Title 16, regarding controlled substances, if that offense involves heroin, cocaine, derivatives of either, or any other controlled substance in Schedule I, II, III, IV, or V and that other substance is commonly intravenously injected, as determined by the regulations of the department.     "Body fluids" means blood, semen, or vaginal secretions.   "Confirmed positive HIV test" means the results of at least two separate types of HIV tests, both of which indicate the presence of HIV in the substance tested thereby.   "Counseling" means providing the person with information and explanations medically appropriate for that person which may include all or part of the following: accurate information regarding AIDS and HIV; an explanation of behaviors that reduce the risk of transmitting AIDS and HIV; an explanation of the confidentiality of information relating to AIDS diagnoses and HIV tests; an explanation of information regarding both social and medical implications of HIV tests; and disclosure of commonly recognized treatment or treatments for AIDS and HIV.   "Determined to be infected with HIV" means having a confirmed positive HIV test or having been clinically diagnosed as having AIDS.   "Health care facility" means any:   Institution or medical facility, as defined in Code Section 31-7-1;   Facility for mentally ill persons or persons with developmental disabilities, as such terms are defined in Code Section 37-1-1, or alcoholic or drug dependent persons, as defined in Code Section 37-7-1;   Medical, dental, osteopathic, or podiatric clinic;   Hospice, as defined in Code Section 31-7-172;   Clinical laboratory, as defined in Code Section 31-22-1; or   Administrative, clerical, or support personnel of any legal entity specified in subparagraphs (A) through (E) of this paragraph.     "Health care provider" means any of the following persons licensed or regulated by the state:   Physician or physician assistant;   Osteopath;   Podiatrist;   Midwife;   Dentist, dental technician, or dental hygienist;   Respiratory care professional, certified respiratory therapy technician, or registered respiratory therapist;   Registered nurse;   Licensed practical nurse;   Emergency medical technician, paramedic, or cardiac technician;   Clinical laboratory director, supervisor, technician, or technologist;   Funeral director or embalmer;   Member of a hospice team, as defined in Code Section 31-7-172;   Nursing home administrator;   Professional counselor, social worker, or marriage and family therapist;   Psychologist;   Administrative, clerical, or support personnel, whether or not they are licensed or regulated by the state, of any person specified in subparagraphs (A) through (O) of this paragraph;   Trainee, student, or intern, whether or not they are licensed or regulated by the state, of any persons listed in subparagraphs (A) through (O) of this paragraph; or   First responder, as defined in Chapter 11 of this title, although such person is not licensed or regulated by the state.     "HIV" means any type of Human Immunodeficiency Virus, Human T-Cell Lymphotropic Virus Types III or IV, Lymphadenopathy Associated Virus Types I or II, AIDS Related Virus, or any other identified causative agent of AIDS.   "HIV infected person" means a person who has been determined to be infected with HIV, whether or not that person has AIDS, or who has been clinically diagnosed as having AIDS.   "HIV test" means any antibody, antigen, viral particle, viral culture, or other test to indicate the presence of HIV in the human body, which test has been conducted by a certified clinical laboratory.   "Institutional care facility"'means any:   Health care facility;   Child welfare agency, as defined in Code Section 49-5-12;   Group-care facility, as defined in Code Section 49-5-3;   Penal institution; or   Military unit.     "Knowledge of being infected with HIV" means actual knowledge of:   A confirmed positive HIV test; or   A clinical diagnosis of AIDS.     "Law" means federal or state law.   "Legal entity" means a partnership, association, joint venture, trust, governmental entity, public or private corporation, health care facility, institutional care facility, or any other similar entity.   "Military unit" means the smallest organizational unit of the organized militia of the state, as defined in Code Section 38-2-2, or of any branch of the armed forces of the United States, which unit is commanded by a commissioned officer.   "Penal institution" means any jail, correctional institution, or similar facility for the detention of violators of state laws or local ordinances.   "Person" means a natural person.   "Person at risk of being infected with HIV" means any person who may have already come in contact with or who may in the future reasonably be expected to come in contact with the body fluids of an HIV infected person.   "Physician" means any person licensed to practice medicine under Chapter 34 of Title 43.   "Public safety agency" means that governmental unit which directly employs a public safety employee.   "Public safety employee" means an emergency medical technician, firefighter, law enforcement officer, or prison guard, as such terms are defined in Code Section 45-9-81, relating to indemnification of such personnel for death or disability.     Notwithstanding the provisions of Code Sections 31-22-10 and 31-22-11, no person or legal entity, other than an insurer authorized to transact business in this state, shall submit for an HIV test any human body fluid or tissue to any person or legal entity except to:   A clinical laboratory that is certified; or   A clinical laboratory licensed as such pursuant to the laws of any other state.     No person or legal entity may sell or offer for sale any HIV test that permits any person or legal entity, including the person whose body fluids are to be tested, to perform that test other than a person or legal entity specified in paragraphs (1) and (2) of subsection (b) of this Code section; provided, however, that this shall not apply to the sale or offer of sale of an HIV test that has been cleared or approved for home use by the federal Food and Drug Administration.     (Code 1981, §31-22-9.1, enacted by Ga. L. 1988, p. 1799, § 8; Ga. L. 1989, p. 14, § 31; Ga. L. 2002, p. 660, § 4; Ga. L. 2002, p. 1259, § 11; Ga. L. 2009, p. 453, §§ 1-4, 3-5/HB 228; Ga. L. 2009, p. 859, § 3/HB 509; Ga. L. 2011, p. 337, § 10/HB 324; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2016, p. 752, § 3/HB 1058; Ga. L. 2021, p. 472, § 1/HB 93.)    The 2021 amendment,  effective July 1, 2021, substituted "HIV" for "AIDS" in subparagraph (a)(2)(G); substituted "conducted by a certified clinical laboratory" for "approved for such purposes by the regulations of the department" at the end of subparagraph (a)(12); substituted "Code Sections 31-22-10 and 31-22-11" for "Code Section 31-21-10 and Code Section 31-22-11" in subsection (b); substituted "that is certified; or" for "licensed under this chapter" in paragraph (b)(1); deleted former paragraph (b)(2), which read: "A clinical laboratory exempt from licensure under Code Section 31-22-9; or"; redesignated former paragraph (b)(3) as present paragraph (b)(2); and substituted "paragraphs (1) and (2) of subsection (b) of this Code section; provided, however, that this shall not apply to the sale or offer of sale of an HIV test that has been cleared or approved for home use by the federal Food and Drug Administration" for "paragraphs (1) through (3) of subsection (b) of this Code section" at the end of subsection (c).   Cross references.   - Confidential nature of AIDS information, § 24-12-20.   Editor's notes.   - Ga. L. 1988, p. 1799, § 1, not codified by the General Assembly, provides: "The General Assembly finds that Acquired Immunodeficiency Syndrome (AIDS) and its causative agent, including Human Immunodeficiency Virus (HIV), pose a grave threat to the health, safety, and welfare of the people of this state. In the absence of any effective vaccination or treatment for this disease, it threatens almost certain death to all who contract it. The disease is largely transmitted through sexual contacts and intravenous drug use, not through casual contact, and, while deadly, is therefore preventable. The key component of the fight against AIDS is education. Through public education and counseling our citizens can learn how the disease is transmitted and, thus, how to protect themselves and prevent its spread. The Department of Human Resources is encouraged to continue its efforts to educate all Georgians about the disease, its causative agent, and its means of transmission. In addition, voluntary testing should be encouraged for anyone who feels at risk of infection. While education, counseling, and voluntary testing are vital to the elimination of this epidemic, other measures are needed to protect the health of our citizens, and it is the intention of the General Assembly to enact such measures in the exercise of its police powers in order to deal with AIDS and HIV infection."   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1988, "counselor, social worker, or marriage and family therapist" was substituted for "counselors, social workers, or marriage and family therapists" in subparagraph (a)(9)(N) and "Trainee, student, or intern" was substituted for "Trainees, students, or interns" in subparagraph (a)(9)(Q).   Law reviews.   - For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).   JUDICIAL DECISIONS   HIV infected person.    - Evidence was insufficient to convict the defendant of knowingly engaging in sexual intercourse without disclosing to the other person the fact of the defendant being an HIV infected person prior to such intercourse after the defendant obtained knowledge of being infected with HIV as the state failed to prove the defendant's HIV positive status as the record was devoid of any evidence that the defendant was determined to be infected with HIV by an HIV test approved for such purposes by the regulations of the Department of Community Health; and there was no testimony by a physician or other competent witness to explain the test report or describe how the report satisfied the criteria for showing that the defendant was an HIV infected person. Propes v. State, 346 Ga. App. 116, 815 S.E.2d 571 (2018).    Cited in Rodriguez v. State, 343 Ga. App. 526, 806 S.E.2d 916 (2017).