HIV Testing and Privacy in Rhode Island

Although there are some exceptions, Rhode Island law requires informed consent for HIV testing (although it can be oral), but requires written consent for the release of HIV-related medical information.

Questions & Answers (Accurate as of May 13, 2014)

HIV Testing

INFORMED CONSENT

Does Rhode Island have a law governing informed consent for HIV testing?

Yes, while Rhode Island recently eliminated the requirement of written informed consent, Rhode Island prohibits the administration of any HIV test without: (1) providing the person with oral or written information and an opportunity for discussion with a health care provider, (2) informing the person of the right to decline testing, and (3) obtaining the oral consent44 of the person.45  The consent and exchange of information must be documented in the person’s medical record.46  (Note: A distinction is made between confidential and anonymous testing.  In confidential testing the health care provider may use written consent as an option, but in anonymous testing only oral consent is allowed).47

What information must the person receive?

Under RI ST 23-6.3-3(h)(4), the information given to the patient must, at a minimum, include the following:

  1. An explanation of HIV infection;
  2. A description of interventions to reduce HIV transmission;
  3. What a positive and negative test result mean;
  4. The possibility that a recent infection may not be detected;
  5. An opportunity to ask questions and to decline being tested.

Physicians and other health care providers are required to offer HIV testing to any person “with a suspected sexually transmitted disease.”48

MINORS AND INFORMED CONSENT

Can a physician test a minor for HIV without consent of a parent or guardian?

Yes, in Rhode Island, persons under 18 may give legal consent for testing, examination, and/or treatment for any reportable communicable disease, which under Rhode Island Department of Health guidelines includes HIV and AIDS.49

TESTING OF PREGNANT WOMEN

Rhode Island law provides that a physician or health care provider shall include HIV testing among the routine prenatal tests for all pregnant women unless testing is declined.50  In order to be tested for HIV, pregnant women must provide oral consent which must be documented in the medical record.  If a pregnant woman has not been tested for HIV, she will be offered testing again at the time of labor and/or delivery.51  If the mother refuses all these offers for testing and if the mother also refuses to consent to the testing of the newborn, then the newborn can be tested without the mother’s consent.52  If the child’s HIV test is positive, then the mother will be told that she is also infected with HIV.

LIFE INSURANCE EXEMPTION

A person applying for a life insurance policy can be required to undergo HIV testing provided written consent is obtained, and the results of the test can be used by the insurance company for making decisions about whether to issue a life insurance policy.  However, once someone has a life insurance policy, HIV status cannot be used to cancel or refuse to renew the policy.53

HIV TESTING WITHOUT CONSENT

Are there circumstances under which Rhode Island law permits HIV testing, even against a person’s wishes?

Yes, under certain circumstances, enumerated in RI ST 23-6.3-4, Rhode Island law permits, but does not require, a physician or other health care provider to perform an HIV test without the consent of the subject.

  1. Youth
  2. Rhode Island law permits the involuntary HIV testing of:
    • Any person under one year of age;
    • Any person between one and thirteen years of age who “appears to be symptomatic for HIV”;
    • Any person under the age of eighteen who is “under the care and authority of the department of children, youth, and families, and the director of that department certifies that an HIV test is necessary to secure health or human services for that individual.”
  3. Occupational Exposure in a Health Care Facility
    Rhode Island law permits involuntary testing in the event of an exposure to a health care provider in a licensed health care facility or private physician’s office, if:

    • a sample of the patient’s blood is available and an occupational health representative or physician, nurse practitioner, physician assistant, or nurse-midwife not directly involved in the exposure determines that a health care worker had a significant exposure to the blood or bodily fluids of a patient; and
    • the patient refuses to grant consent for an HIV test.  The health care worker must have a baseline HIV test within seventy-two hours of exposure before the patient’s blood can be tested.

    If a sample of the patient’s blood is not available and the patient refuses to consent to an HIV test, the health care worker may petition the Superior Court for an order mandating an HIV test.

  4. Emergency
    An involuntary HIV test is permitted “in an emergency, where due to a grave medical or psychiatric condition, it is impossible to obtain consent from either the patient, or the patient’s parent, guardian, or agent.”  This exception appears by its language to be limited to circumstances in which an HIV test is deemed necessary for the patient’s health.

REQUIRED TESTING

Rhode Island law requires

mandatory

HIV testing under certain circumstances:

  1. Rhode Island law requires an HIV test for any person convicted of:
    • Possession of any controlled substance that has been administered with a hypodermic needle or syringe;54
    • “Violation of any provisions” of the commercial sex activity statute;55 and
    • Committing “any sexual offense involving sexual penetration,” where “the victim, immediate family members of the victim, or legal guardian of the victim” has petitioned the court to order testing.56
  2. Rhode Island law requires mandatory testing of “[e]very person who is committed to the adult correctional institutions to answer for any criminal offense, after conviction,” as well as “periodic testing for HIV, including testing at the time of release and when deemed appropriate by a physician.”57
  3. Rhode Island law requires HIV testing of donated or collected sperm.58

RESULTS OF HIV TESTING

All persons who are tested must be informed of their test results.59  A positive test result must be communicated in person and the person must be given referrals to HIV-related counseling, health care and support and given priority for state-supported programs, such as substance abuse programs.60  All positive results must be confirmed by using a second FDA approved test.61

PRIVACY

CONFIDENTIALITY OF HIV TEST RESULTS

What laws in Rhode Island protect the privacy of medical information, such as HIV?

In Rhode Island, there are multiple laws that protect the privacy of medical information such as HIV. For example, under the HIV-Specific Privacy Law, it is “unlawful for any person to disclose to a third party the results of an individual’s HIV test without the prior written consent of that individual,”62 except for certain exemptions that are listed below.  Other laws that protect privacy of medical information in various circumstances are discussed below.

What law protects the confidentiality of HIV test results that are recorded in patient files?

Rhode Island law also has a specific provision for protecting records of HIV test results, which states that: “Providers of health care, public health officials, and any other person who maintains records containing information on HIV test results of individuals are responsible for maintaining full confidentiality of this data and shall take appropriate steps for their protection.”63

These steps include:

  • Keeping records secure at all times and establishing adequate confidentiality safeguards for any such records electronically stored;
  • Establishing and enforcing reasonable rules limiting access to these records; and
  • Training persons who handle records in security objectives and techniques.64

Are there additional statutes that can protect the confidentially of a person’s HIV positive test result?

Yes, Rhode Island law expressly prohibits the nonconsensual disclosure of confidential health care information, which is described as “all information relating to a patient’s health care history, diagnosis, condition, treatment, or evaluation obtained from a health care provider who has treated the patient.” This law is referred to as the Confidentiality of Health Care Communications and Information Act.”65

Under this act, “confidential health care information” cannot be released or transferred without a written consent form containing clear information regarding the proposed uses of the information and the extent of information to be released.66

EXCEPTIONS TO THE RHODE ISLAND PRIVACY STATUTES

Are there circumstances under which Rhode Island law permits the disclosure of HIV status without written informed consent?

Yes, Rhode Island law provides for disclosure of HIV status under specifically prescribed circumstances.67

  1. A physician may without the consent of the patient:
    • ”[E]nter HIV test results in the patient’s medical record.”
    • Release confidential medical information, including a patient’s HIV status, pursuant to the exceptions listed in the Confidentiality of Health Care Communications and Information Act68 and the Mental Health Law.69
    • Notify the director of the department of children, youth, and families (DCYF) of the results of an involuntary test.70
    • “Inform third parties with whom an HIV-infected patient is in close and continuous exposure-related contact, including but not limited to a spouse and/or partner, if the nature of the contact, in the physician’s opinion, poses a clear and present danger of HIV transmission to the third party; and if the physician has reason to believe that the patient, despite the physician’s strong encouragement, has not and will not inform the third party that they may have been exposed to HIV.”71
  2. Under RI ST 23-5-9, when a person dies with certain enumerated health conditions, including AIDS, a physician or family member (if the person did not die in a health care facility) must notify the person picking up the body that the person died of AIDS. The person picking up the dead body must convey that notification to any embalmer or funeral director.72
  3. If a first responder (e.g., firefighter, police officer, EMT) treating or transporting a person to a licensed facility is exposed to the blood of a person subsequently diagnosed with an infectious disease, and the exposure is sufficient to create a risk of transmission, the facility shall issue notification of exposure.72

REMEDIES

How can violations of the HIV privacy statutes be addressed?

Under Rhode Island law, a civil suit can be filed for damages74,75, as well as attorney’s fees, for violations of the HIV test result statute or the Confidentiality of Health Care Information Act. An intentional and knowing violation of these statutes may also result in criminal prosecution.76

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.

STATE HIV REPORTING REQUIREMENTS

Does Rhode Island have reporting laws that require positive HIV test or AIDS results to be reported to the Rhode Island Department of Health?

All states require that numerous health conditions be reported to state health officials in order to assess trends in the epidemiology of diseases and develop effective prevention strategies. Rhode Island law requires that physicians, health care providers, health care facilities and prisons report the names of persons diagnosed with HIV or AIDS (except in the case of anonymous testing) to the Department of Health,77 including those perinatally exposed to HIV as indicated by two positive PCR tests.78

All information in connection with HIV or AIDS cases is subject to strong confidentiality provisions under Rhode Island law.

Footnotes

44Prior to the passage of House Bill 5415 Substitute B in November 2009, Rhode Island had required written consent for HIV testing.
45RI ST 23-6.3 (h) (2)
46Id.
47RI ST 23-6.3-3 (k)
48RI ST 23-11-17
49RI ST 23-8-1.1
50RI ST 23-6.3-3 (i) (1)
51RI ST 23-6.3-3 (i) (2)
52RI ST 23-6.3-3 (i) (3)
53RI ST 23-6.3-16
54RI ST 21-28-4.20
55RI ST 11-34.1-12

56RI ST 11-37-17
57RI ST 42-56-37 & RI ST 23-6.3-4(a)(11)
58RI ST 23-1-38
59RI ST 23-6.3-3 (g)
60RI ST 23-6.3-3 (e) & (f)
61RI ST 23-6.3-14 (d)
62RI ST 23-6.3-4 (b) (emphasis added)
63RI ST 23-6.3-8(a)
64RI ST 23-6.3-8
65RI ST 5-37.3-3 (3) (i); RI ST 5-37.3-4 (a) 
66RI ST 5-37.3-4 (d)
67RI ST 23-6.3-7
68RI ST 5-37.3-4 (b)
69RI ST 40.1-5-26 (b)
70RI ST 23-6.3-7 (a) (3)
71RI ST 23-6.3-10 (b)
72RI ST 23-5-9
73RI ST 23-28.36-3
74RI ST 5-37.3-9
75RI ST 23-6.3-8 (e)
76RI ST 5-37.3-9
77RI ST 23-6.3-14
78RI ST 23-6.3-14 (4)