PART VI. HIV INFECTION, ARC, AND AIDS

 

Note

 

  Part heading amended by L 1988, c 290, §1.

 

Cross References

 

  Informed consent for testing or disclosure, see §325-16.

  Quality assurance standards for HIV antibody testing, see§325-17.

 

§325-101  Confidentiality of records andinformation.  (a)  The records of any person that indicate that a personhas a human immunodeficiency virus (HIV) infection, AIDS related complex (ARC),or acquired immune deficiency syndrome (AIDS), which are held or maintained byany state agency, health care provider or facility, physician, osteopathicphysician, laboratory, clinic, blood bank, third party payor, or any otheragency, individual, or organization in the State shall be strictlyconfidential.  For the purposes of this part, the term "records"shall be broadly construed to include all communication that identifies anyindividual who has HIV infection, ARC, or AIDS.  This information shall not bereleased or made public upon subpoena or any other method of discovery.  Notwithstandingany other provision to the contrary, release of the records protected underthis part shall be permitted under the following circumstances:

(1)  Release is made to the department of health inorder that it may comply with federal reporting requirements imposed on theState. The department shall ensure that personal identifying information fromthese records is protected from public disclosure;

(2)  Release is made of the records, or of specificmedical or epidemiological information contained therein, with the priorwritten consent of the person or persons to whom the records pertain;

(3)  Release is made to medical personnel in a medicalemergency only to the extent necessary to protect the health, life, orwell-being of the named party;

(4)  Release is made from a physician or osteopathicphysician licensed pursuant to chapter 453 to the department of health toinform the sexual or needle sharing contact of an HIV seropositive patientwhere:

(A)  There is reason for the physician orosteopathic physician to believe that the contact is or has been at risk of HIVtransmission as a result of the index patient having engaged in conduct whichis likely to transmit HIV; and

(B)  The index patient has first been counseledby the physician or osteopathic physician of the need for disclosure and thepatient is unwilling to inform the contact directly or is unwilling to consentto the disclosure of the index patient's HIV status by the physician, the osteopathicphysician, or the department of health; provided that the identity of the indexpatient is not disclosed; and provided further that there is no obligation toidentify or locate any contact.  Any determination by a physician orosteopathic physician to disclose or withhold disclosure of an index patient'ssexual contacts to the department of health pursuant to this subsection whichis made in good faith shall not be subject to penalties under this part orotherwise subject to civil or criminal liability for damages under the laws ofthe State;

(5)  Release is made by the department of health ofmedical or epidemiological information from the records to medical personnel,appropriate county and state agencies, blood banks, plasma centers, organ andtissue banks, schools, preschools, day care centers, or county or districtcourts to enforce this part and to enforce rules adopted by the departmentconcerning the control and treatment of HIV infection, ARC, and AIDS, or to thesexual or needle sharing contacts of an HIV seropositive index patient for purposesof contact notification as provided in paragraph (4); provided that theidentity of the index patient, if known, shall not be disclosed; providedfurther that release of information under this paragraph shall only be made byconfidential communication to a designated individual charged with compliancewith this part;

(6)  Release of a child's records is made to thedepartment of human services for the purpose of enforcing chapters 350 and 587;

(7)  Release of a child's records is made within thedepartment of human services and to child protective services team consultantsunder contract to the department of human services for the purpose of enforcingand administering chapters 350 and 587 on a need to know basis pursuant to awritten protocol to be established and implemented, in consultation with thedirector of health, by the director of human services;

(8)  Release of a child's records is made by employeesof the department of human services authorized to do so by the protocolestablished in paragraph (7) to a natural parent of a child who is the subjectof the case when the natural parent is a client in the case, the guardian adlitem of the child, the court, each party to the court proceedings, and also toan adoptive or a prospective adoptive parent, an individual or an agency withwhom the child is placed for twenty-four hour residential care, and medicalpersonnel responsible for the care or treatment of the child.  When a releaseis made to a natural parent of the child, it shall be with appropriatecounseling as required by section 325-16.  In no event shall proceedings beinitiated against a child's natural parents for claims of child abuse underchapter 350 or harm to a child or to affect parental rights under chapter 587solely on the basis of the HIV seropositivity of a child or the child's naturalparents;

(9)  Release is made to the patient's health careinsurer to obtain reimbursement for services rendered to the patient; providedthat release shall not be made if, after being informed that a claim will bemade to an insurer, the patient is afforded the opportunity to make thereimbursement directly and actually makes the reimbursement;

(10)  Release is made by the patient's health careprovider to another health care provider for the purpose of continued care ortreatment of the patient;

(11)  Release is made pursuant to a court order, afteran in camera review of the records, upon a showing of good cause by the partyseeking release of the records;

(12)  Disclosure by a physician or osteopathicphysician, on a confidential basis, of the identity of a person who is HIVseropositive and who also shows evidence of tuberculosis infection, to a personwithin the department of health as designated by the director of health forpurposes of evaluating the need for or the monitoring of tuberculosischemotherapy for the person and the person's contacts who are at risk ofdeveloping tuberculosis; or

(13)  Release is made for the purpose of complying withsections 325-16.5 and 801D-4(b).  Nothing in this section shall be construed toprohibit a victim to whom information is released pursuant to section 325-16.5from requesting the release of information by a physician, osteopathicphysician, or HIV counselor to a person with whom the victim shares a privilegedrelationship recognized by chapter 626; provided that prior to such release,the person to whom the information is to be released shall be required to signa notice of HIV status disclosure advising them of the confidentialityprovisions regarding HIV test results and the penalties for unlawful disclosureto any person other than a designated physician, osteopathic physician, or HIVcounselor.

As used in this part, unless the contextrequires otherwise:

"Medical emergency" means anydisease-related situation that threatens life or limb.

"Medical personnel" means any healthcare provider in the State, as provided in section 323D-2, who deals directlyor indirectly with the identified patient or the patient's contacts, andincludes hospital emergency room personnel, the staff of the communicabledisease division of the department of health, and any other departmentpersonnel as designated by the director.

(b)  Recording or maintaining informationprotected under this part in a separate portion of an individual's file whichis clearly designated as confidential shall not be construed as a breach per seof that individual's confidentiality.

(c)  No person shall be compelled to consent tothe release of information protected under this part or to disclose whether theperson has been tested for the presence of HIV infection in order to obtain ormaintain housing, employment, or education.

(d)  Any person who receives or comes intopossession of any record or information released or disclosed pursuant tosubsection (a) shall be subject to the same obligation of confidentiality asthe party from whom the record or information was received. [L 1986, c 161, ptof §1; am L 1987, c 238, §1; am L 1988, c 290, §§2, 3; am L 1989, c 377, §1; amL 1991, c 141, §2; am L 1992, c 162, §1; am L 1998, c 238, §4; am L 2009, c 11,§38]

 

Note

 

  Chapter 460 referred to in text is repealed.

  The 2009 amendment is retroactive to April 3, 2008. L 2009, c11, §76(2).

 

Cross References

 

  Advisory committees for infected health care workers, see§325-18.