HIV Testing and Privacy in Vermont

Vermont does not have a statute mandating specific informed consent for an HIV test or release of HIV-related medical information, but there are general laws that provide some protections.

Questions & Answers (Accurate as of November 3, 2011)

HIV Testing

What laws in Vermont govern informed consent for HIV testing?

Vermont does not have a statute mandating specific and written informed consent for an HIV test.  An HIV test may therefore be taken based on a general medical consent.  Vermont, however, does have a specific law requiring that insurers who test applicants for HIV follow specific procedures, including obtaining HIV-specific written consent.

What procedures must an insurer follow when testing an applicant for HIV?

An insurer in Vermont cannot require that a person reveal having taken HIV tests in the past.  The insurer, however, can request that an applicant or insured take an HIV test.  In addition to obtaining HIV-specific written informed consent for an HIV test, the insurer must provide specific information to every applicant.  This information includes:

  1. An explanation of the HIV test, and its relationship to AIDS;
  2. The limitations on the accuracy and meaning of the test results, and the importance of seeking counseling about the test results;
  3. The insurer’s purpose in seeking the test;
  4. An explanation that the individual is free to consult with a personal physician or counselor about HIV testing and may obtain an anonymous test before being tested by the insurer;
  5. An explanation that the person has the choice to receive the test results directly or through another person designated in writing; and
  6. A statement that the insurer may disclose the test results to others—such as its medical personnel—in order to make underwriting decisions.

An insurer may disclose to the Medical Information Bureau, a centralized insurance industry database, that an individual who tested HIV-positive received an abnormal blood test result, but may not specify HIV-positivity.  In addition, an insurer may not disclose HIV-related information to any insurance broker or agent.

The information required to be provided to the applicant or insured must be read aloud to the insured as well as provided in writing.20

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

Yes.  Vermont law provides for HIV testing under one unique circumstance.  A court may order that a person convicted of an offense involving a sexual act be tested for HIV and that the result be disclosed to the victim.21  Records of any court proceedings are sealed.

In addition, the law provides that a defendant who has been charged with a sexual act offense, but has not yet been convicted, may offer to be tested for HIV and other sexually transmitted diseases.  The test result may not be used as evidence at the defendant’s criminal trial, but if the defendant is ultimately convicted, the court may consider the offer for testing as a mitigating factor.22

Privacy

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

Under general common law principles, physicians, health care providers and institutions cannot disclose private medical information to others without the patient’s consent.

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.

Are there circumstances under which Vermont law permits the disclosure of HIV status, even against a person’s wishes?

Yes.  Vermont law provides for disclosure of HIV status under specifically prescribed circumstances.

  1. Court Ordered Disclosure:  Under Vermont law, a court may order that an individual disclose HIV-related testing or counseling information if it finds that the person seeking the information has “demonstrated a compelling need for it that cannot be accommodated by other means.”23  In making such a determination, the court weighs the need for the disclosure of a person’s HIV status against the privacy interest at stake.  In recognition of the importance of maintaining the privacy of HIV status, the Vermont Legislature has also directed courts in such cases to consider whether the public interest may be disserved by a disclosure of HIV status that deters future testing and may lead to discrimination.  The law contains numerous procedural safeguards, including a requirement that the name of the test subject not be disclosed, the right of the test subject to participate in the court hearing, and a requirement that any court order specify who may have access to the HIV-related information and prohibitions on future disclosure.
  2. HIV and AIDS Reporting for Epidemiological Tracking:  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. Vermont law requires that a broad range of health care providers, hospitals, and managed care organizations report a diagnosis of HIV infection or AIDS to the Department of Health.24  The patient’s name is included in the report. Vermont law specifies that:
    • An individual must be informed prior to an HIV test that a positive test will require reporting of the individual’s name to the Department of Health and that there are testing sites that provide anonymous testing that are not required to report positive results.
    • The Department of Health is prohibited from disclosing a public health record identifying a person as having HIV or AIDS without the individual’s voluntary written authorization, including to other states, the federal government or other Vermont state agencies.
    • Department of Health records identifying a person as having HIV or AIDS may not be used in a civil, criminal or administrative legal proceeding, or for employment or insurance purposes.

Footnotes

20Vt. Stat. Ann. tit. 8, § 4724 (20) (B) (i)
21Vt. Stat. Ann. tit. 13, § 3256.  The term sexual act , defined in Vt. Stat. Ann. tit. 13, § 3251, means: 1) contact between penis and vulva, mouth and penis, mouth and vulva, or any intrusion of a body part or object into the genital or anal opening of another; and 2) which creates a risk of transmission of HIV as determined by the U.S. Centers for Disease Control
22Vt. Stat. Ann. tit. 13, § 3256 (f)
23Vt. Stat. Ann. tit. 12, § 1705 (a)
24Vt. Stat. Ann. tit. 18, §1001 (a)