36-663

36-663. HIV-related testing; restrictions;
exceptions

A. Except as otherwise specifically authorized or required by this state or by
federal law, before an HIV-related test is ordered by a health care provider, the health
care provider shall ensure that oral or written informed consent information is provided
to the subject of the test who has capacity to consent or, if the subject lacks capacity
to consent, of a person authorized pursuant to law to consent to health care for that
person. For the purposes of this subsection, "informed consent information" means
information that explains HIV infection and the meaning of a positive test result and
that indicates that the patient may ask questions and decline testing.

B. This section does not apply to the performance of an HIV-related test:

1. By a health care provider or health facility in relation to the procuring,
processing, distributing or use of a human body or a human body part, including organs,
tissues, eyes, bones, arteries, blood, semen, milk or other body fluids, for use in
medical research or therapy or for transplantation to other persons.

2. For the purpose of research if the testing is performed in a manner by which the
identity of the test subject is not known and may not be retrieved by the researcher.

3. On a deceased person, if the test is conducted in order to determine the cause
of death or for epidemiologic or public health purposes.

4. In the course of providing necessary emergency medical treatment to a patient
who lacks capacity to consent to HIV-related testing and for whom no person authorized
pursuant to law to consent to health care for that person can be identified on a timely
basis if the testing is necessary for the diagnosis and treatment of the emergency
condition. The attending physician shall document the existence of an emergency medical
condition, the necessity of the HIV-related testing to diagnose and treat the emergency
condition and the patient's lack of capacity.

5. On a patient who lacks capacity to consent and for whom no person authorized
pursuant to law to consent to health care for that person can be identified on a timely
basis if the HIV-related testing is directly related to and necessary for the diagnosis
and treatment of the person's medical condition. HIV-related testing shall be performed
under these circumstances only on written certification by the attending physician and a
consulting physician that the HIV-related testing is directly related to and necessary
for the diagnosis and treatment of the patient's medical condition.

6. That is performed on an anonymous basis at a public health agency.