HIV Testing and Privacy in Connecticut
Connecticut law only requires a consent for HIV testing as part of a general consent for medical care, but does require written consent for the release of HIV-related medical information.
Questions & Answers (Accurate as of May 13, 2014)
Does Connecticut have a law governing HIV testing?
Yes, but the law was changed significantly in 2009 eliminating the need to get specific informed consent each time an HIV-related test is done and the need to do pre-test counseling. Instead, a general consent for medical care is sufficient as long as the general consent contains an instruction to the patient that the patient “may” be tested for HIV unless the patient “choose[s] not to be tested for HIV.”23 Under this system, the burden is on the patient who does not want to be tested for HIV to communicate that refusal to the healthcare provider.
If the person declines an HIV-related test, then that will be documented in the patient’s record, but otherwise the medical provider does not need to get the patient’s specific consent to perform an HIV-related test. The term “HIV-related test” includes a test for any agent “thought to cause or indicate the presence of HIV infection.”24
Post-Test Counseling Requirements
Are there requirements for what must be provided to the patient at the time the results of the HIV-related test are communicated?
Yes, Connecticut law specifies counseling or referral to counseling must be provided, as needed:25
- for coping with the emotional consequences of learning an HIV test result,
- regarding potential discrimination issues,
- for behavior modification to prevent transmission,
- to inform the person of available medical treatments and services and HIV support services agencies, and
- regarding the need to notify partners.
Consent of Minors
Can a physician test a minor for HIV without consent of a parent or guardian?
Yes, Connecticut law explicitly provides that the “consent of a parent or guardian shall not be a prerequisite to testing of a minor.”26
Connecticut law also requires that at the time a minor receives the test result, if he or she was tested without parental consent, the provider must give the minor counseling or referrals to “work towards” involving the minor’s parents in decision-making about medical care. In addition, the minor must receive actual counseling about the need to notify partners.27
HIV Testing Without Consent
Are there circumstances under which Connecticut law permits HIV testing, even against a person’s wishes?
Yes, Connecticut law permits involuntary HIV testing, without the need for informed consent, in several situations. The following four circumstances are the most important circumstances permitting involuntary testing:
1. Occupational Exposure – Significant Exposure Required.
Connecticut law permits a nonconsensual “HIV-related test” of the source of a “significant exposure”28 to HIV which occurs during a person’s occupational duties.29
In order to obtain a nonconsensual HIV test of a source, the subject employee must:
- Document the occurrence of a significant occupational exposure and complete an incident report within 48 hours;
- Have a negative baseline HIV test within 72 hours;
- Through a physician, have attempted to obtain and been refused, voluntary consent from the source;
- Be able to take meaningful immediate action…which could not otherwise be taken” (such as beginning a prophylactic drug regimen or making decisions regarding pregnancy or breastfeeding); and
- Have an “exposure evaluation group” determine that the above criteria are met.30
How the Test Occurs: If the source is a patient in a health, correctional, or other facility, an available sample of blood may be tested or a blood sample may be drawn from the source and tested. If the source is not in such a facility and a physician certifies that there has been a significant exposure, the worker may seek a court order for testing.
The employer must pay the cost of the HIV test.
2. Inability to Consent
A licensed health care provider may order a nonconsensual HIV test when the subject is unable to consent or lacks capacity to give or refuse consent and the test is necessary for “diagnostic purposes to provide appropriate urgent care.”31
The Department of Correction may perform involuntary HIV testing on an inmate either because it is necessary for the diagnosis or treatment of an illness, or if the inmate’s behavior poses a significant risk of transmission to another inmate or has resulted in a significant exposure to another inmate.3233 In both situations, there must be no reasonable alternative to testing available to achieve the same goal.
4. By Court Order
Connecticut law contains a broad provision permitting a court to order an HIV test when the court determines that there is a “clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result which cannot be accommodated by other means.”34 In its assessment, the court must weigh the need for the test result against both the “privacy interests of the test subject and the public interest which may be disserved by involuntary testing.”35,36
HIV Testing & Insurers
Do the same laws that pertain to testing done by health organizations pertain to testing done by insurers?
No, Connecticut law makes a distinction between HIV testing by health organizations and HIV testing done by insurers. A separate set of laws governs HIV testing by insurers, rather than the general HIV testing statute.37
In order to take any HIV-related test of an insurance applicant, the insurer must obtain written informed consent.38 The Commissioner of Insurance has developed a required format for such consent. An insurer may use an alternative form which must be filed with the Insurance Commissioner.
May life and health insurers and health centers disclose a positive HIV-related test result to any group for any reason?
Yes, the law permits life and health insurers and health centers to disclose a positive HIV-related test result to an organization that collects information about insurance applicants for the purpose of detecting fraud or misrepresentation, but such disclosure must be in the form of a code that includes many other test results and could not therefore be used to reasonably identify an applicant’s test result as an HIV-related test.39
HIV Testing of Pregnant Women and Newborns
Are there unique requirements for the administration of HIV tests for pregnant women and newborns?
Yes, any health care provider giving prenatal care to a pregnant woman must explain to her that HIV testing is a part of routine prenatal care and inform her of the health benefits to herself and her newborn of being tested for HIV infection. The requirements for consent and post-test counseling are the same as those discussed at the beginning of this topic.40 If the woman consents to HIV testing the result will be listed in her medical file.
If a pregnant woman is admitted for delivery and there is no documentation of HIV-related testing in her medical record, the health care provider must inform her of the health benefits to herself and her newborn of being tested for HIV infection either before delivery or within 24 hours after delivery, and the health care provider must then administer an HIV test unless there is a specific written objection from the patient.41
Are there HIV testing laws that are specific to newborns?
Yes, all newborns shall be administered an HIV-related test as soon after birth as medically appropriate, unless the infant’s parents object to the test as being in conflict with their “religious practice.” This mandate does not apply if the mother was tested pursuant to the laws described above.42
In addition, the Department of Public Health may establish a registry of data on infants who have been exposed to HIV or AIDS medication in order to study the potential long-term effects of such medication on infants.
AIDS Vaccine Researchers
Is there an HIV-related law that governs HIV/AIDS vaccine researchers?
Yes, the HIV-related law that governs HIV/AIDS vaccine researchers states that when a drug is developed and tested to determine its success as a vaccine against HIV/AIDS, a manufacturer, research institution, or researcher will not be held liable for civil damages resulting from clinical trials where the drug is administered to research subjects. This immunity from liability must be presented to the research subject in writing and that person (or his or her parent or guardian in the case of a minor) must provide informed written consent to act as a research subject.43
Confidentiality of HIV Test Results
Are there laws in Connecticut that protect the privacy of medical information, such as HIV?
Connecticut law contains a broad prohibition against the disclosure by any person, without a written release, of “confidential HIV-related information.”44,45
Does a person with HIV have a Constitutional right to privacy?
Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status. Courts have based this right on the Due Process Clause of the U.S. Constitution, which creates a privacy interest in avoiding disclosure of certain types of personal information.
The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor—e.g. police, prison officials, doctors at a state hospital.
To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reasons for a policy or practice that results in disclosure.
Exceptions to the Connecticut HIV Privacy Statute
Are there circumstances under which Connecticut law permits the disclosure of HIV status without written informed consent?
Yes, Connecticut law provides for disclosure of HIV status under specifically prescribed circumstances:
- To a health care provider or facility when necessary to provide “appropriate care or treatment.”46
- To a health care worker or other employee where there has been a “significant occupational exposure” and the requirements articulated above are met.
- To employees of hospitals for mental illness operated by the Department of Mental Health and Addiction Services if the infection control committee determines the patient’s behavior poses a significant risk of transmission to another patient.47 Disclosure may only occur if it is likely to prevent or reduce the risk of transmission and no reasonable alternative, such as counseling, is available to achieve the same goal.
- To employees of facilities operated by the Department of Correction to provide services related to HIV-infection or if the medical director and chief administrator determine that the inmate’s behavior poses a significant risk of transmission to another inmate or has resulted in a significant exposure to another inmate at the facility.48
- To life and health insurers in connection with underwriting and claims activity for life, health, and disability benefits.49
- To any person allowed access to such information by a court order, as described above. There are safeguards to protect the privacy of the source in any such court proceeding and subsequent disclosure of HIV-related information.50
How can violations of the testing and privacy statute be addressed?
Under Connecticut law, a person can recover compensatory damages for any injury suffered from a “willful” violation of the informed consent and confidentiality requirements.51
The phrase “willful” violation has been interpreted by the Supreme Court of Connecticut to mean simply that the disclosure of HIV-related information must be knowingly made. It need not be intended to produce injury.52
State HIV Reporting Requirements
Does Connecticut have reporting laws that require HIV or AIDS diagnoses to be reported to the Connecticut Department of Health?
Yes. All states require that certain health conditions be reported to public health authorities in order to track epidemiological trends and develop effective prevention strategies. Connecticut requires that physicians report to the Department of Public Health; 1) patients diagnosed with AIDS; 2) patients testing positive for HIV; 3) and children born to HIV positive women. Information collected is kept confidential.
Duty To Warn
What does the phrase “duty to warn” refer to?
The term “duty to warn” refers to situations in which a counselor or physician may learn that a client is engaging in unsafe sex without having disclosed his or her HIV-positive status to the partner. Many people have asked whether there is a legal basis to breach client or patient confidentiality under these circumstances.
Does Connecticut have an HIV-specific duty to warn statute that pertains to physicians and public health officers?
Yes, Connecticut law permits both public health officers and physicians, under certain circumstances, to inform or warn partners that they may have been exposed to HIV.53 The term “partner” means an “identified spouse or sex partner of the protected individual or a person identified as having shared hypodermic needles or syringes with the protected individual.”54 The requirements for such a disclosure by a public health officer are that:
- There is a reasonable belief of a significant risk of transmission to the partner;
- The public health officer has counseled the individual regarding the need to notify a partner and reasonably believes that the individual will not disclose to the partner; and
- The public health officer has informed the protected individual of his or her intent to make the disclosure.
A physician may only warn or inform a known partner if both the partner and the individual with HIV are under the physician’s care. A physician may also disclose confidential HIV related information to a public health officer for the purpose of warning partners, if the physician takes the same steps with respect to his or her patient as public health officers must take above.
In making such a warning, the physician or public health official shall not disclose the identity of the HIV-infected individual and, where practicable, shall make such disclosure in person.
Does Connecticut have statutes that allow other health care providers to disclose a client’s HIV status?
No. The AIDS Law Project believes that any general laws related to “duty to warn”55 do not pertain to HIV disclosure, because Connecticut law specifically protects the confidentiality of HIV-related information and makes no exceptions for mental health providers, such as psychologists and social workers.
Connecticut law contains a broad prohibition on the disclosure of confidential HIV-related information by any person.56 Since the Connecticut legislature specifically provided a narrow exemption permitting warning by physicians and public health officers only57, there is a strong argument that the legislature has addressed that issue and decided not to permit other providers to disclose HIV status.
Nevertheless, the issue of duty to warn is an evolving and unclear area of law. Mental health professionals must consult an attorney or supervisor for advice if he or she believes that a client’s communications justify breaching client confidentiality and disclosing a client’s HIV status to a third person.
Are there requirements for how to disclose HIV-related information?
Yes, whenever confidential HIV-related information is disclosed, the disclosure must be accompanied by the following statement, or by a statement using substantially similar language:
“This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of it without the specific written consent of the person to whom it pertains, or as otherwise permitted by said law. A general authorization for the release of medical or other information is NOT sufficient for this purpose.”
"An oral disclosure shall be accompanied or followed by such a notice within 10 days."58
Notation of any disclosure must be made in the subject’s medical records, except for disclosures made:
- To federal or state authorities;
- In the course of ordinary medical review; or
- To life and health insurers and government payers in connection with claims for life, health, and disability benefits.
23 Conn. Gen. Stat. sec. 19a-582 (a)
24 Conn. Gen. Stat. sec. 19a-581 (6)
25 Conn. Gen. Stat. sec. 19a-582 (c)
26 Conn. Gen. Stat. sec. 19a-582 (a)
27 Conn. Gen. Stat. sec. 19a-582 (c)
28 The threshold requirement that there be a “significant exposure” means “a parenteral exposure such as a needlestick or cut, or mucous membrane exposure such as a splash to the eye or mouth, to blood or a cutaneous exposure involving large amounts of blood or prolonged contact with blood, especially when the exposed skin is chapped, abraded, or afflicted with dermatitis.” Conn. Gen. Stat. sec. 19a-581 (14). Department of Health Services Regulations additionally list a variety of internal organ fluids whose contact can constitute a “significant exposure” and lists sexual assault in the course of occupational duties as a mode of “significant exposure” as well. See Department of Public Health, Public Health Code sec. 19a-589-1(o) .Exposure to urine, feces, saliva, sweat, tears, and vomit is excluded, unless the fluid in question contains visible amounts of blood. Likewise, human bites or scratches are excluded unless there is direct blood to blood or blood to mucous membrane contact. Id.
29 Conn. Gen. Stat. sec. 19a-582 (d)(5).
30 An “exposure evaluation group” means at least three impartial health care providers, one of whom must be a physician, who determine the existence of a “significant exposure.” Conn. Gen. Stat. sec. 19a-581 (15).
31 Conn. Gen. Stat. sec. 19a-582 (d)(1).
32 “Significant risk of transmission” means “sexual activity that involves transfer of one person’s semen, vaginal or cervical secretions to another person or sharing of needles during intravenous drug use.” Conn. Gen. Stat. sec. 19a-581 (13).
33 Conn. Gen. Stat. sec. 19a-582 (d)(6), (d)(7)
34 Conn. Gen. Stat. sec. 19a-582 (d)(8)
35 Conn. Gen. Stat. sec. 19a-582 (d)(8)
36 Additional provisions for HIV testing without consent under Connecticut law include: (1) testing human organs, tissues, blood, or semen which are being used in medical research or therapy or for transplantation; (2) for research purposes if the identity of the subject cannot be determined; or (3) to determine the cause of death. See Conn. Gen. Stat. sec. 19a-582 (d) generally.
37 Conn. Gen. Stat. sec. 19a-586
38 Conn. Gen. Stat. sec. 19a-586
39 Conn. Gen. Stat. sec. 19a-587
40 Conn. Gen. Stat. sec. 19a-593 (a)
41 Conn. Gen. Stat. sec. 19a-593 (b)
42 Conn. Gen. Stat. sec. 19a-55 (a)
43 Conn. Gen. Stat. sec. 19a-591 (a & b)
44 The term “confidential HIV-related information” means any information “pertaining to” a person who has “been counseled regarding HIV infection, is the subject of an HIV-related test or, who has been diagnosed as having HIV infection, AIDS, or HIV-related illness.” Conn. Gen. Stat. sec. 19a-581 (7), (8). It includes information which even reasonably could identify a person as having such conditions and information relating to such individual’s partners. Conn. Gen. Stat. sec. 19a-581 (8).
45 Conn. Gen. Stat. sec. 19a-583 (a)
46 Conn. Gen. Stat. sec. 19a-583(a) (4)
47 Conn. Gen. Stat. sec. 19a-583 (a)(8)
48 Conn. Gen. Stat. sec. 19a-583 (a)(9)
49 Conn. Gen. Stat. sec. 19a-583 (a)(11)
50 Conn. Gen. Stat. sec. 19a-583
51 Conn. Gen. Stat. sec. 19a-590
52 See Doe v. Marselle, 675 A.2d 835, 236 Conn. 845 (1996)
53 Conn. Gen. Stat. sec. 19a-584
54 Conn. Gen. Stat. sec. 19a-581 (10)
55 Conn. Gen. Stat. sec. 52-146c, §52-146f
56 Conn. Gen. Stat. sec. 19a-583
57 Conn. Gen. Stat. sec. 19a-581(12)
58 Conn. Gen. Stat. sec. 19a-585 (a)