HIV Testing and Privacy in New Hampshire
Although there are some exceptions, New Hampshire law requires consent for HIV testing and release of HIV-related medical information.
Questions & Answers (Accurate as of November 2, 2011)
Does New Hampshire have a law governing consent for HIV testing?
Yes, New Hampshire has a statute mandating consent for an HIV test, except in certain cases which are enumerated later. A physician, licensed nurse practitioner, employee of a health care facility, or employee of a blood bank, may administer an HIV test when the patient has provided his/her consent.21
Does consent for an HIV test have to be in writing?
No, New Hampshire law does not mandate written consent for an HIV test. In order to avoid disputes about whether consent has been obtained, providers may want to document a patient’s consent in the record or obtain consent in writing.
What do providers have to inform their patients about, prior to testing a person for HIV or when the results are given to the patient?
In 2007, New Hampshire eliminated any requirement of pretest counseling prior to the administration of an HIV test. New Hampshire law, however, mandates “appropriate counseling” of the individual who was tested.22
MINORS AND CONSENT
Can a physician test a minor for HIV without consent of a parent or guardian?
Yes, any minor over the age of 14 can provide consent to be tested and treated for HIV without the consent or knowledge of a parent or legal guardian.23,24
In addition, a physician is not obligated to, but may, disclose a positive test result to a parent or legal guardian of a person who is under the age of 18.25 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 New Hampshire law permits HIV testing, even against a person’s wishes?
Yes, there are four circumstances under which voluntary consent is not required:
- Testing of Persons Convicted of Sexual Assault Crimes: All people convicted of a sexual assault crime in NH are tested for HIV. The test results will be disclosed to the person convicted and to the office of victim/witness assistance. The office of victim/witness assistance is authorized to disclose the test results to the victim and the county attorney victim/witness advocates, although this is discretionary. The victim may be notified regardless of whether the victim has requested notification. The state must also provide counseling and referrals to the victim and the person convicted, and offer HIV testing for the victim.26
- Prisoners: Individuals who are convicted and confined to a correctional facility, or people committed to New Hampshire Hospital (the state psychiatric hospital), “may be tested without obtaining written informed consent to the testing, when the results of such tests are necessary for the placement and management of such individuals in the facility,” in accordance with the written policies and procedures of the chief administrator of the facility.27 In addition, test results of HIV-positive persons committed to a prison or mental health facility are disclosed to the medical director or chief medical officer of such facility. The medical director of the facility “shall” provide the facility’s administrator “whatever medical data is necessary to properly assign, treat, or manage the affected individual.” Similarly, the administrator “may” share this information with other officials who require the information to properly assign, treat, or manage the affected individual.28
- Person Incapable of Consenting: When a person is incapable of giving informed consent, a physician (or person authorized by a physician) may take an HIV test without informed consent if the test is “immediately necessary to protect the health of": (1) the person; or (2) an individual who has had an occupational exposure to the person’s blood or bodily fluids.”29
- Testing of Donated Blood Products: Any agency receiving purchased or donated blood products “shall” test them for HIV prior to their distribution and use.30,31
What about the testing of patients after occupational exposure when the person is capable of consenting? Can a person in New Hampshire be forced to take an HIV test because of a threat of occupational exposure?
No, New Hampshire law does not provide any authorization for involuntary HIV testing of patients in the event of an exposure to a health care worker or emergency first aid personnel.
However, in the event that an emergency response or public safety worker32 experiences an occupational exposure to an infectious disease, the emergency response worker’s employer must have a medical referral consultant evaluate the exposure and give appropriate care, including prophylactic treatment. The medical referral consultant is required to “make all reasonable efforts to request and obtain a blood specimen from a source individual” for HIV testing when, in his or her opinion, HIV testing is “necessary in order to determine the proper prophylactic treatment or advice for the exposed worker.” Nonetheless, the source individual or their legal guardian must consent to an HIV test and any disclosure of the test results to third persons.33
HIV TESTING AND INSURERS
Do the laws that pertain to testing done by health organizations pertain to testing done by insurers?
No, New Hampshire law makes a distinction between HIV testing by health organizations and HIV testing done by insurers. A separate set of laws under the state Unfair Insurance Trade Practices Act34 governs HIV testing by insurers, rather than the general HIV testing statute.
Are there privacy laws that pertain to the HIV test results that an insurer obtains from an individual?
Yes, the insurer can disclose the results of a positive HIV test only to the individual tested or any person the individual clearly authorized in writing on the form.
The insurer must maintain all results and records “confidential and protected against inadvertent or unwarranted intrusion.”35
Must an insurance company or agent obtain written consent before testing an insurance applicant for HIV?
Yes, in order to test an insurance applicant for HIV, an insurer must obtain written consent for an HIV test on a form designated by the Department of Health and Human Services, containing information about the medical interpretations of positive and negative test results, disclosure of test results, and the purpose for which the results may be used.36
What are possible remedies that a consumer may recover, if the insurer violates any of the privacy provisions of this law?
The Commissioner of Insurance enforces these confidentiality provisions. If the Commissioner finds that an insurer violated any confidentiality provision, a consumer may subsequently bring a suit against the insurer.37 If the consumer prevails, he or she may recover damages, costs, and reasonable attorney’s fees.38
CONFIDENTIALITY OF HIV TEST RESULTS
Are there laws in New Hampshire that protect the privacy of medical information, such as HIV?
Yes, according to New Hampshire law, a health care provider may not reveal the identity of any person tested for HIV “to any person or agency except”:
- The individual tested;
- Their parent or legal guardian if they are a minor or a mentally incompetent adult; and
- The physician ordering the test, or the person authorized by the physician.39
New Hampshire law provides privacy protections for HIV+ test results in virtually every context. Under New Hampshire law, “[a]ll records and any other information pertaining to a person’s testing for [HIV] shall be maintained by a health care provider, health or social service agency, organization, business, school or any other entity, public or private, as confidential, and protected from inadvertent or unwarranted intrusion.” 40
These confidentiality provisions apply to the disclosure of mental health, substance abuse, and other health-related records containing HIV or AIDS status information.
What form of consent must a health care provider obtain from a person before disclosing information about a person’s HIV test?
Written consent is required to disclose an individual’s HIV test results, or even that a person was the subject of an HIV test. Such written authorization must be HIV-specific and must include the reason for the request to disclose the test result.41
This requirement, that a doctor obtain written consent before disclosing information about a person’s HIV test, is different from the requirement that is necessary for a physician to test a person for HIV. As discussed above, consent may be verbal for a physician or health care provider to test a person for HIV.
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, 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.
EXCEPTIONS TO THE NEW HAMPSHIRE HIV PRIVACY STATUTE
Are there circumstances under which New Hampshire law permits the disclosure of HIV status, even against a person’s wishes?
Yes, New Hampshire law provides for disclosure of HIV status under two specifically prescribed circumstances.
- Health of a Patient: A physician may disclose HIV test results to another physician or health care provider “directly involved” in the patient’s health care if the disclosure is “necessary in order to protect the health of the person tested.”42
- Blood Donations: The identity of a person who tests positive for HIV may be disclosed to an agency who receives blood donations, provided that the information remains confidential and protected from unwarranted intrusion.43
What can happen if the New Hampshire testing and privacy statute is violated?
Any person who violates the HIV confidentiality and disclosure statutes described above44 shall be liable for actual damages, court costs, and attorney’s fees, plus a civil penalty of up to $5000.45
Violations of the informed consent, test reporting, or confidentiality provisions described above46 may also result in criminal liability. Violations are considered misdemeanors if committed by a person, and felonies if committed by a corporate entity.
STATE HIV REPORTING REQUIREMENTS
Do laws exist in New Hampshire that require HIV-positive test results to be reported to the state department of public health?
Yes, New Hampshire regulations require physicians, health care providers, and diagnostic labs to report HIV and AIDS cases to the Department of Public Health within 72 hours.47 Local boards of health and individuals in charge of institutions where there is no health care provider in attendance are also required to report cases of communicable diseases to the Department “immediately,” including HIV or AIDS.48
Both reports of AIDS and HIV diagnoses must indicate the name of the patient.49
May the Department of Public Health notify others of my HIV status?
Yes, New Hampshire law includes a general provision permitting the Commissioner of Public Health or his or her designee to do “contact referral” to notify persons who may have been infected with HIV. The law, however, prohibits the Commissioner or his or her designee from disclosing the identity of any HIV-positive individual.50 The State’s current practice is to offer assistance to HIV-positive individuals in notifying partners.
DUTY TO WARN
Do health care professionals ever have an obligation to warn a third party about a client’s HIV status?
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. It is the AIDS Law Project’s view that there is no clear justification for such a breach of confidentiality under New Hampshire law. Providers and consumers alike, however, should be aware that the case law in this area is still developing and remains unresolved. For a legal opinion on how to handle a particular situation, a professional should consult with a supervisor or lawyer.
Does New Hampshire have a “duty to warn” statute?
Yes, New Hampshire has statutes generally addressing a duty by specified health providers to warn of threats of client violence to third parties. When a client has communicated a serious threat of physical violence against a clearly identified victim or a serious threat of substantial damage to real property, covered professionals51 in New Hampshire have a “duty to warn” of, or take reasonable precautions to provide protection from, a client’s violent behavior. These laws apply to certified mental health professionals,52,53 physicians54 and nurses.55
The obligation to warn can be fulfilled through:
- Reasonable efforts to communicate the threat to a victim;
- Notification of police; [and/or]
- Civil commitment of the client to the state mental health system. (Note: the client must be in a mental condition “as a result of the mental illness to pose a likelihood of danger to himself or others.”)
- A covered professional is not liable for information disclosed to a third party in an effort to discharge the duty described above. It is important to keep in mind that New Hampshire law does not permit the disclosure of HIV status without written consent. Therefore, although no court has resolved the issue, the applicability of these duty to warn statutes to HIV is doubtful in light of this broad prohibition on the disclosure of HIV status in New Hampshire.
21RSA § 141-F:5.
22RSA § 141-F:7, II.
23This statute permits a minor over the age of 14 to “voluntarily submit himself to medical diagnosis and treatment for a sexually transmitted disease…without the knowledge or consent of the parent or legal guardian.” While HIV can also be transmitted through other means, it is recognized as a sexually transmitted disease for the purposes of this law.
24RSA § 141-C:18, II.
25RSA § 141-F:7, III.
26RSA § 632-A:10-b.
27RSA § 141-F:5, IV.
28RSA § 141-F:7, IV.
29RSA § 141-F:5, V.
30This statute also includes provisions for HIV testing without consent of donated body parts, fluids, or tissue used for medical or research purposes if the identity of the test subject is not known and cannot be determined by the researcher.
31RSA § 141-F:5, I - III.
32Includes firefighters, police officers, prison employees, emergency health care providers, and emergency towing personnel.
33RSA § 141-G.
34RSA § 417:4, XIX.
35RSA § 141-F:8.
36RSA § 417:4, XIX.
37RSA § 417:19.
38RSA § 417:20.
39RSA § 141-F:7-8.
40In addition, all records or information pertaining to a person’s HIV test which are “obtained by subpoena or any other method of discovery shall not be released or made public.” RSA § 141-F:8, II.
41RSA § 141-F:8.
42RSA § 141-F:8, IV.
43RSA § 141-F:8, V.
44RSA § 141-F:7-141-F:8.
45RSA § 141-F:10.
46RSA § 141-F:5-141-F:8.
47See Department of Health and Human Services Regulations, NH He-P 301.02.
48This provision includes schools, childcare agencies, hotels, restaurants, workplaces, hospitals, pharmacies, and prisons. NH He-P 301.03.
49NH He-P 301.03 (b).
50RSA § 141-F:9.
51These statutes also cover those who provide treatment “under the supervision” of covered professionals.
52The statute includes psychologists, clinical social workers, pastoral counselors, medical health counselors, and marriage and family therapists.
53RSA § 330-A:22.
54RSA § 329:31.
55RSA § 326-B:31.