Bill Text: MI HB4583 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Health; testing; requirement to obtain written informed consent and provide counseling before testing for human immunodeficiency virus (HIV); eliminate, and require physician to provide pretest information and give option to decline test in writing. Amends sec. 5133 of 1978 PA 368 (MCL 333.5133).
Spectrum: Slight Partisan Bill (Democrat 6-2)
Status: (Passed) 2010-12-29 - Assigned Pa 320'10 With Immediate Effect [HB4583 Detail]
Download: Michigan-2009-HB4583-Engrossed.html
HB-4583, As Passed House, March 24, 2010
SUBSTITUTE FOR
HOUSE BILL NO. 4583
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 5133 (MCL 333.5133), as amended by 1994 PA 420.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
5133. (1) Except as otherwise provided in subsections
(12)
and (13) this section, a physician who orders an HIV test or a
health
facility that performs an HIV test shall provide counseling
information appropriate to the test subject both before and after
the test is administered.
(2) Except as otherwise provided in this part, a physician, or
an individual to whom the physician has delegated authority to
perform a selected act, task, or function under section 16215,
shall not order an HIV test for the purpose of diagnosing HIV
infection without first providing the test subject with pretest
information
and receiving the written, informed
consent of the test
subject.
For purposes of this section, written, informed consent
consists
of a signed writing executed means
a written or verbal
consent to the test by the test subject or the legally authorized
representative
of the test subject. that includes, at a minimum,
all
of the following:
(a)
An explanation of the test including, but not limited to,
the
purpose of the test, the potential uses and limitations of the
test,
and the meaning of test results.
(b)
An explanation of the rights of the test subject
including,
but not limited to, all of the following:
(i) The right to withdraw consent to the test at any
time
before
the administration of the test.
(ii) The right under this part to confidentiality of
the test
results.
(iii) The right under this part to consent to and
participate in
the
test on an anonymous basis.
(c)
The person or class of persons to whom the test results
may
be disclosed under this part. The
physician or health facility
shall document the provision of informed consent, including pretest
information, and whether the test subject or the legally authorized
representative of the test subject declined the offer of HIV
testing. Informed consent for HIV testing shall be maintained in
the patient's medical records.
(3)
Beginning July 28, 1989, a physician or an individual to
whom
the physician has delegated authority to perform a selected
act,
task, or function under section 16215 who orders an HIV test
shall
distribute to each test subject a pamphlet regarding the HIV
test
on a form provided by the department. The department shall
develop
the pamphlet, which September
1, 2010, pretest information
shall include all of the following:
(a)
The purpose and nature of the test.
(b)
The consequences of both taking and not taking the test.
(c)
The meaning of the test results.
(d)
Other information considered necessary or relevant by the
department.
(e)
A model consent form for the signed writing required under
subsection
(2). The department shall include in the model consent
form
all of the information required under subsection (2)(a), (b),
and
(c).
(a) An explanation of the test, including, but not limited to,
the purpose of the test, the potential uses and limitations of the
test, and the meaning of test results.
(b) An explanation of how HIV is transmitted and how HIV can
be prevented.
(c) An explanation of the rights of the test subject,
including, but not limited to, all of the following:
(i) The right to decline the test at any time before the
administration of the test and the circumstances under which the
test subject does not have the right to decline the test.
(ii) The right to confidentiality of the test results under
this part and under the health insurance portability and
accountability act of 1996, Public Law 104-191.
(iii) The right under this part to consent to and participate in
the test on an anonymous basis.
(iv) The person or class of persons to whom the test results
may be disclosed under this part and under the health insurance
portability and accountability act of 1996, Public Law 104-191.
(4) The department, the Michigan board of medicine, and the
Michigan board of osteopathic medicine and surgery shall make the
pamphlet
information required under subsection (3) available to
physicians. The Michigan board of medicine and the Michigan board
of osteopathic medicine and surgery shall notify in writing all
physicians subject to this section of the requirements of this
section
and the availability of the pamphlet information by July
10,
1989 September 1, 2010. Upon request, the Michigan board of
medicine and the Michigan board of osteopathic medicine and surgery
shall
provide copies of the pamphlet information, free of charge,
to a physician who is subject to this section.
(5)
If a test subject is given a copy of the pamphlet required
under
subsection (3), the physician or individual described in
subsection
(3) shall include in the test subject's medical record a
form,
signed by the test subject, indicating that he or she has
been
given a copy of the pamphlet.
(5) (6)
A test subject who executes a
signed writing pursuant
to subsection (2) as that subsection read before September 1, 2010
is barred from subsequently bringing a civil action based on
failure to obtain informed consent for the HIV test against the
physician who ordered the HIV test.
(6) (7)
The department shall provide develop the
pamphlet
information
required under subsection (3) .
The department shall
develop
the pamphlet and have it ready for distribution by June 28,
1989.
The department shall write and print the pamphlet in clear,
nontechnical
English and Spanish, . The department shall distribute
the
pamphlet, and provide the
information upon request and free of
charge, to a physician or other person or a governmental entity
that is subject to this section. Nothing in this section prohibits
a physician or health facility from combining a form used to obtain
informed consent for HIV testing with forms used to obtain consent
for general medical care or any other medical tests or procedures
if the forms make clear that the subject may consent to general
medical care, tests, or medical procedures without being required
to consent to HIV testing and, if applicable, that the subject may
decline HIV testing at any time before the administration of the
test.
(7) (8)
In addition to complying with the
duties imposed under
subsection
(7), (6), the department shall provide copies of the
pamphlet
information required under
subsection (3) to the Michigan
board of medicine and the Michigan board of osteopathic medicine
and
surgery. The department shall provide copies of the pamphlet
information to other persons upon written request, at cost, and
shall
also provide copies of the pamphlet information free of
charge, upon request, to public or private schools, colleges, and
universities.
(8) (9)
An individual who undergoes an HIV
test at a
department approved testing site may request that the HIV test be
performed on an anonymous basis. If an individual requests that the
HIV test be performed on an anonymous basis, the staff of the
department approved testing site shall administer the HIV test
anonymously or under the condition that the test subject not be
identified, and shall obtain consent to the test using a coded
system that does not link the individual's identity with the
request for the HIV test or the HIV test results. If the test
results of an HIV test performed under this subsection indicate
that the test subject is HIV infected, the staff of the department
approved testing site shall proceed with partner notification in
the same manner in which a local health department would proceed as
described in section 5114a(3) to (5).
(9) (10)
Subsection (2) This section does not apply to an HIV
test performed for the purpose of research, if the test is
performed in such a manner that the identity of the test subject is
not revealed to the researcher and the test results are not made
known to the test subject.
(11)
A health facility may develop a standard protocol for an
HIV
test performed upon a patient in the health facility in
preparation
for an incisive or invasive surgical procedure.
(10) (12)
This Except as otherwise
provided in subsection
(12), this section does not apply to an HIV test performed upon a
patient in a health facility if the conditions in subdivisions (a)
and (b) or the conditions in subdivisions (a) and (c) are met:
(a) The patient is informed in writing upon admission to the
health facility that an HIV test may be performed upon the patient
without
the written consent required under this section his or her
right to decline under circumstances described in subdivision (b)
or (c). As used in this subdivision, "admission" means the
provision of an inpatient or outpatient health care service in a
health facility.
(b) The HIV test is performed after a health professional,
health facility employee, police officer, or fire fighter, or a
medical first responder, emergency medical technician, emergency
medical technician specialist, or paramedic licensed under section
20950 or 20952 sustains in the health facility, while treating the
patient before transport to the health facility, or while
transporting the patient to the health facility, a percutaneous,
mucous membrane, or open wound exposure to the blood or other body
fluids of the patient.
(c) The HIV test is performed pursuant to a request made under
section 20191(2).
(11) (13)
Subsections (1) to (3) do Except
as otherwise
provided in subsection (12), this section does not apply if the
test
subject is unable to receive or understand , or both, the
pretest
counseling and the pamphlet information described in
subsections
(1) to (3) or to execute the signed writing decline the
test as described in subsection (2), and the legally authorized
representative of the test subject is not readily available to
receive
the pamphlet information or execute written consent decline
for the test subject.
(12) (14)
If the results of an HIV test
performed pursuant to
subsection
(11) or (12) or under circumstances
described in
subsection
(13) this section indicate that the patient is HIV
infected, the health facility shall inform the patient of the
House Bill No. 4583 (H-2) as amended March 24, 2010
positive test results and provide the patient with appropriate
counseling regarding HIV infection and acquired immunodeficiency
syndrome. [If the results of an HIV test performed under this section
indicate that the patient is not HIV infected, that information shall be provided to the patient through normal health care provider procedures, including, but not limited to, a patient visit, mail, or telephone communication.]
Enacting section 1. This amendatory act takes effect September
1, 2010.
