Download this document in MS Word format
ACT OF THE GENERAL ASSEMBLY 2007-2008

AutoFill Template

NO. 73.  AN ACT RELATING TO HIV NAME‑BASED REPORTING.

(S.192)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  The sole purpose of this act is to enable Vermont to continue to be eligible for federal funding which has been made contingent upon name-based HIV case reporting.

Sec. 2.  18 V.S.A. § 1001(a) is amended to read:

§ 1001.  REPORTS TO COMMISSIONER OF HEALTH

(a)  When a physician, health care provider, administrator of a hospital, health care facility, health maintenance organization or managed care organization, or the administrator’s designee, town health officer, nurse practitioner, nurse, physician’s assistant or, school health official has reason to believe that a person is sick or has died of a diagnosed or suspected disease, identified by the department of health as a reportable disease and dangerous to the public health or if a laboratory director has evidence of such sickness or disease, he or she shall transmit within 24 hours a report thereof and identify the name and address of the patient and the name of the patient’s physician to the commissioner of health or designee, except in the case of the human immunodeficiency virus (HIV) which shall be reported only by a unique identifier codeIn the case of HIV, “reason to believe” shall mean personal knowledge of a positive HIV test result.  The commissioner with the approval of the secretary of human services shall by regulation rule establish a list of those diseases dangerous to the public health that shall be reportable.  Nonmedical community‑based organizations shall be exempt from this reporting requirement.  All information collected pursuant to this section and in support of investigations and studies undertaken by the commissioner for the purpose of determining the nature or cause of any disease outbreak shall be privileged and confidential.  The health department shall, by rule, require that any person required to report under this section has in place a procedure that ensures confidentiality.  In addition, in relation to the reporting of HIV and AIDS, the health department shall, by rule:

(1)  develop procedures, in collaboration with individuals living with HIV or AIDS and with representatives of the Vermont AIDS service organizations, to ensure confidentiality of all information collected pursuant to this section; and

(2)  develop procedures for backing up encrypted, individually identifying information, including procedures for storage, location, and transfer of data.

(b)  Public health records that relate to the human immunodeficiency virus (HIV) or to acquired immune deficiency syndrome (AIDS) that contain any personally identifying information, or any information that may indirectly identify a person and was developed or acquired by state or local public health agencies shall be confidential and shall not only be disclosed, except for public health purposes as provided by law or pursuant to a written authorization voluntarily executed by following notice to the individual subject of the public health record, or the individual’s guardian or conservator legal representative and pursuant to a written authorization voluntarily executed by the individual or the individual’s legal representative.  Such notice and authorization is required prior to all disclosures, including disclosures to other states, the federal government, and other programs, departments, or agencies of state government.  

(c)  A disclosure made pursuant to subsection (b) of this section shall include only the information necessary for the purpose for which the disclosure is made.  The disclosure shall be made only on agreement that the information shall remain confidential and shall not be further disclosed without additional notice to the individual and written authorization by the individual subject as required by subsection (b) of this section.

(d)  A confidential public health record, including any information obtained pursuant to this section, shall not be:

(1)  Disclosed or discoverable in any civil, criminal, administrative, or other proceeding.

(2)  Used to determine issues relating to employment or insurance for any individual.

(3)  Used for any purpose other than public health surveillance, and epidemiological follow-up.

(e)  Any person who:

(1)  willfully or maliciously discloses the content of any confidential public health record without written authorization or as authorized by law or in violation of subsections (b), (c), or (e)(d) shall be subject to a civil penalty of not less than $10,000.00 and not more than $25,000.00, and costs and attorney fees as determined by the court, compensatory and punitive damages, or equitable relief, including restraint of prohibited acts, costs, reasonable attorney’s fees, and other appropriate relief. 

(2)  negligently discloses the content of any confidential public health record without written authorization or as authorized by law or in violation of subsections (b), (c), or (d) of this section shall be subject to a civil penalty in an amount not to exceed $2,500.00 plus court costs, as determined by the court, which penalty and costs shall be paid to the subject of the confidential information.

(3)  willfully, maliciously, or negligently discloses the results of an HIV test to a third party in a manner that identifies or provides identifying characteristics of the person to whom the test results apply without written authorization or as authorized by law or in violation of subsections (b), (c), or (d) of this section that results in economic, bodily, or psychological harm to the subject of the test is guilty of a misdemeanor, punishable by imprisonment for a period not to exceed one year or a fine not to exceed $25,000.00, or both.

(4)  commits any act described in subdivision (1), (2), or (3) of this subsection shall be liable to the subject for all actual damages, including damages for economic, bodily, or psychological harm that is a proximate result of the act.  Each disclosure made in violation of this chapter is a separate and actionable offense.  Nothing in this section limits or expands the right of an injured subject to recover damages under any other applicable law.

(f)  Except as provided in subdivision (a)(2) of this section, the department is prohibited from collecting, processing, or storing any individually identifying information concerning HIV/AIDS on any networked computer or server, or any laptop computer or other portable electronic device.  On rare occasion, not as common practice, the department may accept HIV/AIDS individually identifying information electronically.  Once that information is collected, the department shall, in a timely manner, transfer the information in compliance with this subsection.

(g)  Health care providers must, prior to performing an HIV test, inform the individual to be tested that a positive result will require reporting of the result and the individual’s name to the department, and that there are testing sites that provide anonymous testing that are not required to report positive results.  The department shall develop and make widely available a model notification form. 

(h)  Nothing in this section shall affect the ongoing availability of anonymous testing for HIV.  Anonymous HIV testing results shall not be required to be reported under this section.

(i)  No later than November 1, 2007, the department shall conduct an information and security audit in relation to the information collected pursuant to this section, including evaluation of the systems and procedures it developed to implement this section and an examination of adequacy of penalties for disclosure by state personnel.  No later than January 15, 2008, the department shall report to the senate committee on health and welfare and the house committee on human services concerning options available, and the costs those options would be expected to entail, for maximizing protection of the information collected pursuant to this section.  That report shall also include the department’s recommendations on whether the general assembly should impose or enhance criminal penalties on health care providers for unauthorized disclosures of medical information.  The department shall solicit input from AIDS service organizations and the community advisory group regarding the success of the department’s security measures and their examination of adequacy of penalties as they apply to HIV/AIDS and include this input in the report to the legislature.

(j)  No later than January 1, 2008, the department shall plan and commence a public campaign designed to educate the general public about the value of obtaining an HIV test.

Sec. 3.  8 V.S.A. § 4724(20) is amended to read:

§ 4724.  UNFAIR METHODS OF COMPETITION OR UNFAIR OR
  DECEPTIVE ACTS OR PRACTICES DEFINED

The following are hereby defined as unfair methods of competition or unfair or deceptive acts or practices in the business of insurance:

* * *

(20)  HIV‑related tests.  Failing to comply with the provisions of this subdivision regarding HIV‑related tests.  “HIV‑related test” means a test approved by the United States Food and Drug Administration and the commissioner, used to determine the existence of HIV antibodies or antigens in the blood, urine, or oral mucosal transudate (OMT).

* * *

(B)(i)  No person shall request or require that an individual submit to an HIV‑related test unless he or she has first obtained the individual’s written informed consent to the test.  Before written, informed consent may be granted, the individual shall be informed, by means of a printed information statement which shall have been read aloud to the individual by any agent of the insurer at the time of application or later and then given to the individual for review and retention, of the following:

* * *

(IV)  an explanation that the person requesting or requiring the test, not the individual or the individual’s health care provider, will be billed for the test, that the individual has a choice to receive the test results directly or to designate in writing prior to the administration of the test any other person through whom to receive the results, and any HIV positive test result from a test performed pursuant to this subdivision (20) shall be reported to the Vermont department of health by a unique identifier code pursuant to 18 V.S.A. § 1001.

Sec. 4.  NOTIFICATION TO INDIVIDUALS FOR CASES PREVIOUSLY
 REPORTED

The department shall collaborate with individuals living with HIV or AIDS, representatives of the Vermont AIDS service organizations, and health care providers, to notify individuals for whom HIV-positive test results were reported by unique identifier that a new report will be made to the health department using the individual’s name.

Sec. 5.  CONTINGENT REPEAL

This act shall be effective only so long as state receipt of federal funds is contingent upon names-based HIV case reporting, and shall expire upon the elimination of the federal requirement for names-based HIV case reporting, such as that contained in 42 U.S.C. § 300ff-28.  Upon such an occurrence, reporting of human immunodeficiency virus (HIV) cases pursuant to 18 V.S.A. § 1001 shall be by a unique identifier only. 

Sec. 6.  EFFECTIVE DATE

Sections 4 and 5 shall be effective immediately.  All other sections shall be effective on April 1, 2008, except that the department may immediately begin rulemaking pursuant to 18 V.S.A. § 1001. 

Approved:  June 6, 2007



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us