|BILL AS INTRODUCED||2007-2008|
Introduced by Committee on Health and Welfare
Subject: Health; reportable diseases; HIV; name‑based reporting
Statement of purpose: This bill proposes to: (1) remove hospital administrators, town health officers, and nonmedical community‑based organizations from the list of persons who must report cases of listed diseases to the department of health; (2) allow anonymous HIV testing; (3) require health care providers to report HIV cases to the department of health using the patient’s name, rather than through use of a unique identifier code; (4) require the department of health to adopt rules to ensure enhanced computer security and protection of information collected concerning reportable diseases; (5) prohibit the department from disclosing identifying information about a person with a reportable disease, even to other state agencies or to the federal government, unless the individual has authorized the disclosure; (6) prohibit use of identifying HIV information for any purpose other than public health surveillance; (7) prohibit the department from storing identifying HIV information on a laptop or networked computer; (8) establish a private right of action for malicious disclosure of identifying information; (9) require the department to perform a computer security audit and evaluate the adequacy of penalties for disclosure of identifying information by state personnel and health care providers; and (10) require the department to plan and implement a public campaign to educate the public about the value of obtaining an HIV test as part of a regular medical examination.
AN ACT RELATING TO HIV NAME‑BASED REPORTING
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 18 V.S.A. § 1001(a) is amended to read:
§ 1001. REPORTS TO COMMISSIONER OF HEALTH
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 code. In 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:
(1) develop procedures, in collaboration with representatives of the Vermont AIDS service organizations when those procedures affect HIV/AIDS reporting, to ensure confidentiality of all information collected pursuant to this section, including specific procedures concerning human immunodeficiency virus (HIV) and AIDS; and
(2) develop procedures for backing up encrypted individually identifying information, including procedures around storage, location, and transfer of data.
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.
(e) Any person who:
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.
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
(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. 2. 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.
The Vermont General Assembly
115 State Street