HIV Testing and Privacy in Maine
Maine only requires that a patient be informed that an HIV test will be performed unless the patient declines, but has a statute that requires written consent for the release of HIV-related medical information.
Questions & Answers (Accurate as of November 3, 2011)
RIGHT TO DECLINE HIV TESTING
What type of consent or notice does Maine law require before an HIV test can be done?
Maine law mandates that an HIV test must be “voluntary and undertaken only with the patient’s knowledge that an HIV test is planned.”30 Maine, however, has eliminated its requirement that no HIV test may be conducted without a patient’s specific written informed consent.31 The law now requires only that “[a] patient must be informed orally or in writing that an HIV test will be performed unless the patient declines.”32 The law also requires that the information given to patients before the test include the meaning of positive and negative test results. In addition, the patient must have the opportunity to ask questions.
Maine law authorizes anonymous HIV testing sites.33
Health insurers or healthcare plans requiring an HIV test must still obtain written informed consent to perform an HIV test.34
In addition, Maine law prohibits a health care provider from denying medical treatment solely because an individual has refused consent to an HIV test.35
What do providers have to inform their patients about before and after testing a person for HIV?
In 2007, in order to streamline testing procedures, Maine eliminated mandatory pre-test counseling for an HIV test. Patients who test positive for HIV, however, must be offered post-test counseling, unless the patient declines by signing a waiver. The counseling must at a minimum include:
- The reliability and significance of the test results.
- Information about preventive practices and risk reduction.
- Referrals for medical care and support services, as needed.36
A provider must offer face-to-face post-test counseling, but may provide an alternative means of providing the information if the client declines face-to-face counseling. In addition, a written memorandum summarizing the contents of the post-test counseling information must be provided to the client.
MINORS AND INFORMED CONSENT
Can a physician test a minor for HIV without consent of a parent or guardian?
A physician may test a minor for HIV without obtaining the consent of the minor’s parent or guardian.37
In addition, a physician is not obligated to, but may, inform the minor’s guardian or parent of any medical treatment rendered, including HIV test results. If confidentiality is important to you, it is a good idea to talk to your doctor up front and understand his or her policies on this issue.
HIV TESTING WITHOUT CONSENT
Are there circumstances under which Maine law permits HIV testing, even against a person’s wishes?
Yes, Maine law permits involuntary HIV testing in certain limited circumstances, such as testing of a person convicted of a sexual assault crime, and of the source of an occupational exposure:
- Occupational Exposure
Under Maine law, a person who, while performing his or her job duties, experiences an exposure to potentially infectious blood or body fluids of another person38 may petition the district court for an order that the source of the exposure submit to involuntary HIV testing and that the results be provided to the employee.39
In order for the district court to make such an order, the following conditions must be met:
- The exposure must create a “significant risk of HIV infection,” as defined by the Bureau of Health.40
- The employer must first attempt to obtain written informed consent to an HIV test from the source of the exposure.
- The employee exposed to the blood or body fluids must have consented to and obtained an HIV test immediately following the documented exposure.
The statute sets forth the procedure for obtaining a court order. The employee must file a petition in the district court. The district court must schedule a confidential hearing and, if requested, appoint counsel for any indigent client. The court, however, may order a public hearing or release a report of the hearing to the public upon request from the source of the exposure.
The court may order subsequent HIV testing arising from the same exposure.
If the court orders an involuntary HIV test, the source may appeal the order to the Superior Court.
The employer of the person exposed is responsible for the employee’s costs, including the payment of attorneys’ fees.
The fact that an HIV test was given as a result of an occupational exposure and the result of the test may not appear in any records of the individual tested. In addition, the subject of the test may choose not to be informed about the test result.41
Occupational Exposure in a Health Care Setting
When an occupational exposure occurs in a health care setting, and the source patient is not present or cannot be contacted to give authorization for an HIV test, or if the source patient is incapacitated, Maine law authorizes the following people, in descending order of priority, to authorize an HIV test on a blood or tissue sample from the source patient:
- the patient’s legal guardian;
- an individual who has power of attorney for health care for the patient;
- an adult relative, by blood, marriage, or adoption;
- an adult “with whom the patient has a meaningful social or emotional relationship;” and
- a physician who is familiar with occupational exposures to HIV.42
If the person contacted for authorization refuses to authorize the test, then the test may not conducted without a court order as described in section one, above.
The test result may not be provided to the person authorizing the test and may not appear in the patient’s records without express patient authorization. Test results may be given only to the exposed person or certain limited health care providers managing the exposure.43
After Conviction of Sexual Assault
A victim of a sex crime (or the parent or guardian, in the case of a minor or an incapacitated adult) may petition the court for an involuntary HIV test of a person who has been convicted of the sex crime. The petition must be filed within 180 days of the conviction.44
The results of the involuntary HIV test are disclosed to the victim-witness advocate, who shall disclose them to the petitioner. The petitioner must previously have had HIV test counseling. The court must order that the test results be disclosed to the convicted offender if requested by the victim.
Testing of Donated Blood Products
Informed consent for an HIV test is not required when testing a donated human body part to assure the medical acceptability of an organ donation.45
In addition, certain laboratories, researchers, blood banks and health care providers may test blood or tissues for HIV without informed consent for the purpose of research as long as the identity of the test subject is not known.
Testing of Pregnant Women and Newborns
All pregnant women must be informed orally or in writing that an HIV test will be included in the standard panel of prenatal medical tests, unless the woman declines HIV testing. In addition, a health care provider is mandated to test a newborn for HIV within 12 hours of birth if the health care provider does not know the mother’s HIV status or “believes that HIV testing is medically necessary.” There is an exception to such newborn testing if the parent asserts an objection based on religious or conscientious beliefs.46
CONFIDENTIALITY OF HIV TEST RESULTS
Are there laws in Maine that protect the privacy of information, such as HIV?
Yes. Maine law prohibits the disclosure of HIV test results to anyone other than the subject of the test without the subject’s authorization.47 When a medical record contains a person’s HIV status, the patient must elect in writing whether to authorize the release of that portion of the medical record.48 A health care provider who has been designated by the subject of the test to receive HIV test result information may make the results available only to other health care providers working directly with the patient and only for purposes of providing direct medical or dental patient care.49
DISCLOSURE OF HIV STATUS IN A STATEWIDE HEALTH INFORMATION EXCHANGE
Maine has established a system of electronic health information exchanges. General medical information may be shared in an exchange unless an individual opts-out. HIV-related information, however, may only be shared if an individual consents in writing to the disclosure of HIV-related information through the exchange.50
However, if the person has not opted-out of the exchange and has not consented to the disclosure of HIV status, HIV status can still be shared in the event of a medical emergency or certain limited threats to others.51
Does a person with HIV have a Constitutional right to privacy?
Yes, 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, or doctors at a state hospital.
How do courts determine if a person’s constitutional right to privacy has been violated?
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.
Remedy for Unlawful HIV Testing or Disclosure
A person who violates Maine law regarding HIV testing or the confidentiality of HIV test results is liable to the subject for actual damages and costs plus a civil penalty of up to $1,000 for a negligent violation and $5,000 for an intentional violation.52
STATE HIV REPORTING REQUIREMENTS
Does Maine have reporting laws that require HIV or AIDS diagnoses to be reported to the Maine Department of Health and Human Services?
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. Maine requires that health care providers and facilities report the names of individuals diagnosed with AIDS or HIV to the Department of Health and Human Services within 48 hours of the diagnosis.53 Information is kept confidential and may not be disclosed except as permitted by 5 M.R.S.A. § 19203 (Maine’s law on confidentiality of HIV tests).
30 5 M.R.S.A §19203-A.
31 5 M.R.S.A. §19203-A.
32 5. M.R.S.A. §19203-A (emphasis added). While the title of § 19203-A is “voluntary informed consent required,” Maine’s law is not an informed consent system. Informed consent, whether oral or written, requires that a patient affirmatively assent before a test can be done. Current Maine law simply requires that a patient be notified that a test will occur and places the burden on the patient to opt out.
33 5 M.R.S.A. §19203-B.
34 5 M.R.S.A. §19203-A (2).
35 5 M.R.S.A. § 19203-A (3).
36 5 M.R.S.A. § 19204-A.
37 32 MRSA § 3292 permits a physician to provide medical treatment for venereal disease to a minor without parental consent. The Maine Department of Human Services has classified HIV as a venereal disease.
38 The statute refers to this as a “bona fide occupational exposure,” which means “skin, eye, mucous membrane or parenteral contact of a person with the potentially infectious blood or body fluids of another person that results from the performance of duties by the exposed person in the course of employment.” 5 M.R.S.A.§ 19201 (1-A).
39 5 M.R.S.A. § 19203-C.
40 The Bureau of Health defines a “significant risk of HIV infection” as exposure to blood, semen, vaginal fluid, cerebrospinal fluid, synovial fluid, pleural fluid, peritoneal fluid, pericardial fluid, or amniotic fluid, resulting from sexual intercourse, mucous membrane contact, parenteral inoculation, or cutaneous exposure involving large amounts or prolonged contact on non-intact skin. See Rules for the Control of Notifiable Conditions, Maine Department of Human Services, Bureau of Health, 1996, p. 15.
41 5 M.R.S.A. § 19203-A.
42 5 M.R.S.A. § 19203-A (4-A).
43 5 M.R.S.A. § 19203-A (4-A).
44 5 M.R.S.A. § 19203-F.
45 5 M.R.S.A. § 19203.
46 5 M.R.S.A. § 19203-A(6)
47 5 M.R.S.A. § 19203.
48 5 M.R.S.A. § 19203-D.
49 5 M.R.S.A. § 19203 (2).
50 5 M.R.S.A. § 19203-D (4).
52 5 M.R.S.A. § 19206
53 Department of Health and Human Services, Maine Center for Disease Control & Prevention, Chapter 258 (Rules for the Control of Notifiable Disease Conditions), 10-144.