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HIV Testing and Privacy in Maine

Questions & Answers

HIV Testing

INFORMED CONSENT

Does Maine have a law governing informed consent for HIV testing?

Yes, Maine law¹⁰ provides that no person may perform an HIV test without the subject’s voluntary written informed consent.  However, the informed consent law was amended in 1995 to provide that informed consent is not required for “repeated HIV testing ... to monitor the course of established infection.”¹¹

Under the informed consent requirements of Maine’s HIV testing law, the person to be tested must have an “actual understanding” of:

• The nature of an HIV test and the purposes for which the test results may be used;
• The persons to whom the results may be disclosed; and
• Any foreseeable risks and benefits of the test.

Must anonymous testing sites obtain written consent?

No, anonymous testing sites may obtain verbal rather than written consent for HIV testing.¹²

PRETEST & POST-TEST COUNSELING REQUIREMENTS

What do providers have to inform their patients about prior to testing a person for HIV?

Under Maine law¹³ , persons who are the subject of an HIV test must be offered pre and post-test counseling.  In order to decline this counseling, a person must sign a waiver.  Pretest counseling must include:

1. The nature and reliability of the test being performed.
2. The purpose of the test and to whom the results may be disclosed.
3. Foreseeable risks and benefits from the test.
4. Information on “good HIV preventive practices and HIV risk reduction.”

Informed consent therefore requires that the subjects of HIV tests (other than at anonymous testing sites) be informed of the provisions of a Maine law that became effective January 1, 1999, on the confidentiality of health care information.  This law specifies the circumstances in which medical record information, including HIV status, may be disclosed by a health care provider or facility without the patient’s authorization.

Also, pretest counseling must be face-to-face counseling.  The provider may offer group counseling, but must provide individual counseling if requested.

What do providers have to inform their patients about after testing a person for HIV?

Post-test counseling must include:

1. The reliability and significance of the test results.
2. Information about preventive practices and risk reduction.
3. Referrals for medical care and support services, as needed. 

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 pretest and 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.¹⁴

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.¹⁵ 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:

1. 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 person¹⁶ 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.¹⁷

   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.¹⁸
   • The employer must first attempt to obtain voluntary 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. 
   

2. 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.¹⁹

   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.

3. 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.²⁰

   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.

Privacy

CONFIDENTIALITY OF HIV TEST RESULTS

Are there laws in Maine that protect the privacy of information, such as HIV?

Yes, a Maine law that seeks to create a comprehensive framework for the privacy of medical records information went into effect on January 1, 1999. ²¹ This law is something of a misnomer since it also creates significant exceptions to the confidentiality of health information.  It is important for people to understand that this law narrows privacy protections for people with HIV in Maine.

However, there is also a law in Maine that requires health care providers and facilities to develop and implement policies and procedures to protect the confidentiality and security of confidential health care information.²²

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.

EXCEPTIONS TO THE MAINE HIV PRIVACY STATUTE

Are there situations in which HIV test results can be disclosed without written authorization?

Yes, Maine law prohibits the disclosure of HIV test results without written authorization to anyone other than the subject
of the test except under the following specifically enumerated circumstances:²³

• To another health care provider or facility for diagnosis, treatment or care in “emergency circumstances.”²⁴
• To another health care provider within the same office, practice, or organization.²⁵
• To another health care provider outside the office, practice or organization in a non-emergency, as long as the patient has given oral consent for such disclosure.  [Authorization to disclose health care information other than HIV status or mental health services to other providers in a non-emergency may also be inferred from the patient’s conduct.]²⁶
• To an agent, employee, or independent contractor of a provider or facility for quality assurance, utilization review or peer review, billing and collection, and risk management.²⁷
• To a family or household member “when an individual is receiving diagnosis, treatment or care in an emergency care facility or health care facility.” This disclosure is limited to “the presence and general health condition of the individual.”²⁸ The terms “family” or “household member” are not defined.
• When a health care provider or facility providing diagnosis, treatment or care “determined, based on reasonable professional judgment, that the individual poses a direct threat of imminent harm to the health or safety of any individual.”²⁹
• To a federal, state or local government entity as part of an investigation when authorized by a specific statute, subpoena or court order.³⁰
• When necessary to conduct scientific research approved by an institutional review board or a clinical trial regulated by the FDA.³¹
• To employees of the Department of Corrections, Department of Human Services and Department of Behavioral and Developmental Services, to the extent that they are responsible for the treatment or care of the subjects of an HIV test.^{32, 33}

STATE HIV REPORTING REQUIREMENTS

Are there circumstances under which an individual’s HIV status can be disclosed to the Maine Bureau of Health?

Yes, under certain circumstances, Maine law permits the disclosure of HIV status to the Bureau of Health.³⁴ Current regulations provide that a diagnosis of: 1) AIDS or, 2) a diagnosis of HIV in combination with a positive TB skin test, must be reported by name to the Bureau of Health.  A diagnosis of HIV infection alone must be reported to the Bureau of Health.  In that case, the name of the HIV-positive individual may, but need not, be reported. See Rules of Notifiable Conditions, State of Maine, Department of Human Services, Bureau of Health, 1996.

Footnotes

¹⁰5 MRSA Sec. 19203-A
¹¹5 MRSA Sec. 19203-A(1)
¹²5 MRSA Sec. 19203-A (1)
¹³5 MRSA Sec. 19204-A
¹⁴This statute 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.  32 MRSA Sec. 3292
¹⁵32 MRSA Sec. 3292
¹⁶The 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 MRSA Sec. 19201 (1-A).
¹⁷5 MRSA Sec. 19203-C.
¹⁸The 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
¹⁹5 MRSA Sec. 19203-F
²⁰5 MRSA Sec. 19203
²¹See 22 MRSA Sec. 1711-C, “Confidentiality of Health Care Information”
²²22 MRSA Sec. 1711-C(7)
²³5 MRSA Sec. 19203.  Under these exceptions a provider may, but need not, disclose medical information unless otherwise mandated to do so by a subpoena, court order or some other specific statute
²⁴22 MRSA Sec. 1711-C(6)(A)(1)
²⁵22 MRSA Sec. 1711-C(6)(A)(2)(a)
²⁶22 MRSA Sec. 1711-C(6)(A)(2)(b)
²⁷22 MRSA Sec. 1711-C(6)(B)
²⁸22 MRSA Sec. 1711-C(6)(C)
²⁹22 MRSA Sec. 1711-C(6)(D)
³⁰Maine law also allows disclosure of patient information, including HIV status, to certain reviewers of the provision of or payment for health care and persons involved in regulatory oversight of health care.  22 MRSA Sec. 1711-C(6) (H)-(J)
³¹22 MRSA Sec. 1711-C(6)(G)
³²22 MRSA Sec. 1711-C(6)(E)-(F)
³³5 MRSA Sec, 19203(7)
³⁴See 5 MRSA Sec. 19203(8)

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