W. Va. Code R. § 64-64-4 - Testing

4.1. Consent.

4.1.a. All health-care providers shall recommend HIV-related testing as part of a routine screening for treatable conditions and as a part of routine prenatal and perinatal care. The HIV-related testing provided for in W. Va. Code §§ 16-3C-2(a) through (d) may also be requested by a health care provider acting within the scope of his or her professional license.

4.1.b. The provisions of W. Va. Code §§ 16-3C-2(b) through (d) shall also be followed when a patient, without a request from a physician, dentist, other health care provider acting within the scope of his or her professional practice, or the Bureau, voluntarily seeks an HIV test from any physician, dentist, other health care provider, or from the Bureau.

4.1.b.1. Patients shall be informed either orally or in writing that HIV-related testing is performed as a part of routine care, that HIV-related testing is voluntary and that the patient may decline HIV-related testing (opt-out); or

4.1.b.2. Patients shall be informed that his or her general consent for medical care includes consent for HIV-related testing.

4.1.c. Nothing in this rule shall be construed to provide grounds for any physician, dentist, other health care provider or the Commissioner to refuse to treat a patient, nor shall the testing provisions of this rule be used by health care providers to screen patients.

4.1.d. HIV screening for pregnant women and their infants.

4.1.d.1. Health care providers shall notify a pregnant patient that HIV screening is recommended and that she will be tested for HIV as part of the routine panel of prenatal tests, unless she declines through the mechanism of opting out.

4.1.d.2. HIV testing of pregnant women should be voluntary and free from coercion. No woman shall be tested without her knowledge, unless in accordance with subdivision 4.2.C. of this section.

4.1.d.3. Pregnant women shall receive oral or written information that includes an explanation of HIV infection, a description of interventions that can reduce HIV transmission from mother to infant, and the meanings of positive and negative test results and she shall be offered an opportunity to ask questions and to decline testing.

4.1.d.4. It is recommended that health care providers test women as early as possible during each pregnancy. Women who decline the test early in prenatal care may be encouraged to be tested at subsequent visits.

4.1.d.5. A second HIV test during the third trimester, preferably prior to the 36^th week of gestation, is cost-effective even in areas of low HIV prevalence and may be considered for all pregnant women. A second HIV test during the third trimester is also recommended for women who meet one or more of the following criteria:

4.1.d.5.A. The woman received health care in facilities in which prenatal screening identifies at least one HIV-infected pregnant woman per 1,000 women screened;

4.1.d.5.B. The woman is known to be at high risk for acquiring HIV, for example, injection- drug users and their sexual partners, women who exchange sex for money or drugs, women who are sex partners of HIV-infected persons and women who have had a new or more than one sex partner during the pregnancy; or

4.1.d.5.C. A woman who has signs or symptoms consistent with acute HIV infection.

4.1.e. The bureau may charge the reasonable cost for HIV laboratory analysis done at the state hygienic laboratory. The cost of the test may not be passed through to the patient by a public health department.

4.2. Consent Not Required.

4.2.a. Consent for testing is not required and the provisions of W. Va. Code § 16-3C-2(b) and Subsection 4.1. of this rule does not apply for the performance of an HIV test:

4.2.a.1. On a human body part as provided in W. Va. Code § 16-3C-2(e)(1). HIV testing shall be required of the donor and recipient of the human body part.

4.2.a.1.A. All confidentiality restrictions contained in Section 8 of this rule and in W. Va. Code § 16-3C-3 apply to information obtained through the testing of human body parts, tissue, blood, blood products, or semen;

4.2.a.1.B. Consent for HIV -related testing is required for donors of routine blood transfusions, and the provisions of W. Va. Code § 16-3C-2(e)(l) do not apply to those transfusions;

4.2.a.2. In documented bona fide medical emergencies as provided for in W. Va. Code § 16-3C-2(e)(2) and as determined by a treating physician taking into account the nature and extent of the exposure to another person, whether the source patient's blood is to be obtained or is already available: Provided, That:

4.2.a.2.A. The source patient is unable or unwilling to grant or withhold consent, and if the source patient is unable to grant or withhold consent, substituted consent is not obtained after a reasonable attempt is made to obtain consent from a legal representative of the source patient in accordance with W. Va. Code § 16-3C-4. For the purposes of this section a reasonable attempt includes but is not limited to: a telephone call or personal contact;

4.2.a.2.B. The test results are necessary for medical diagnostic purposes to provide appropriate emergency care or treatment, and the HIV testing for a source patient is conducted only after a health care provider, as qualified in Subsection 7.1 of this rule, documents in the medical record of a health care provider or emergency responder or another person who has come into contact with a source patient that there has been a significant exposure of the emergency responder or person and that in the medical judgment of that health care provider the results are medically necessary to determine the course of treatment for the exposed emergency responder or person; and

4.2.a.2.B.1. A reasonable attempt is made to contact the source patient, or the source patient's legal representative if the source patient is unable to grant or withhold consent, to inform him or her that the test will be performed using a pseudonym;

4.2.a.2.B.2. The test results are offered to the source patient, and any refusal of acceptance is documented only in the medical record of the exposed health care provider or emergency responder or other exposed person;

4.2.a.2.B.3. None of the activities set forth in this subsection are documented in the source patient's medical record. The health care facility and the health care provider or emergency responder shall maintain confidentiality. If any improper disclosure occurs, the source patient may invoke the remedies and penalties of W. Va. Code § 16-3C-5; and

4.2.a.3. For the purpose of research in accordance with W. Va. Code § 16-3C-2(e)(3).

4.2.b. For a test performed under the authority of W. Va. Code § 16-3C-2(f)(9), the Commissioner may, at his or her discretion, release the test result to the physician or other health care provider who requested the test: Provided, That the provisions of Section 8 of this rule and W. Va. Code § 16-3C-3 regarding confidentiality and disclosure apply. The Commissioner may establish a list of health care providers who are approved to authorize HIV testing in emergency medical aid circumstances.

4.2.c. If the pregnant woman's HIV status is unknown at the time she presents for delivery, an HIV test shall be offered and if she refuses the test, the infant may be tested and the mother shall be informed of the testing and the results.

4.2.c.1. The rapid testing of newborns is recommended as soon as possible after birth so antiretroviral prophylaxis can be offered to HIV-exposed infants when the woman's HIV status is unknown postpartum. The woman shall be informed that identifying HIV antibodies in the newborn indicates that the woman is infected.

4.2.c.2. For infants whose HIV exposure status is unknown and who are in foster care, the person legally authorized to provide consent shall be informed that HIV testing is recommended for infants whose biologic mothers have not been tested.

4.3. Mandated HIV Testing.

4.3.a. The testing of a person charged with or convicted of a sex-related offense as specified in W. Va. Code § 16-3C-2(f) does not require consent of that person and is under the direction of the magistrate or circuit court as specified in this subsection. Counseling may be offered.

4.3.b. The magistrate or circuit court having jurisdiction of the initial stages of the criminal prosecution or juvenile delinquency proceeding shall order that an HIV-related test be performed on any person charged with a sexual offense. The testing shall occur as follows:

4.3.b.1. A court shall order a defendant or juvenile charged with an offense set forth in W. Va. Code § 16-3C-2(f)(2), to undergo a test for HIV not later than 48 hours after the date on which the initial appearance is made.

4.3.b.1.A. The court shall require the defendant or juvenile respondent to submit to the testing not later than forty-eight hours after the issuance of the order described in paragraph 4.3.b.l of this subsection, unless good cause for delay is shown upon a request for a hearing: Provided, That no such delay shall cause the HIV-related testing to be administered later than forty-eight hours after the filing of any indictment or information regarding an adult defendant or the filing of a petition regarding a juvenile respondent.

4.3.b.1.B. The prosecuting attorney may, upon the request of the victim or the victim's parent or legal guardian, and with notice to the defendant or juvenile respondent, apply to the court for an order directing that an appropriate human immunodeficiency virus (HIV) test or other STD test, be performed on a defendant charged with or a juvenile subject to a petition involving the offenses of prostitution, sexual abuse, sexual assault or incest.

4.3.b.2. As soon as practical, test results shall be provided to the magistrate court clerk in the county where the defendant or juvenile respondent is charged. If the criminal matter or juvenile delinquency proceeding is then pending before the circuit court, the magistrate clerk shall immediately forward the test results to the circuit clerk. The clerk shall also promptly provide a copy of the test results to:

1) the prosecuting attorney, who shall inform the victim, or parent or legal guardian of the victim; and

2) counsel for the defendant or juvenile respondent.

4.3.b.3. The court may, at any time during which the charge or juvenile petition is pending, order that the defendant or juvenile submit to one or more appropriate tests to determine if he or she is infected with any sexually transmitted disease.

4.3.b.4. The court may also order follow-up tests for HIV as may be medically necessary or appropriate. The results of any such follow-up tests shall be provided as soon as possible in accordance with paragraph 4.3.b.3. of this subdivision.

4.3.b.5. The costs of testing may be charged to the defendant or juvenile respondent, or to that person's medical insurance provider, unless determined unable to pay by the court having jurisdiction over the matter. If the defendant or juvenile is unable to pay, the cost of laboratory testing for HIV may be borne by the bureau or the local health department.

4.3.b.5.A. The commissioner designates and authorizes all health care providers operating in regional jails, correctional or juvenile facilities to administer HIV tests, either by taking blood or oral specimens, and transmitting those specimens to the Office of Laboratory Services in accordance with instructions set forth at: http://www.wvdhhr.org/labservices/labs/HIV/index.cfm.

4.3.b.5.B. Laboratory testing done on specimens sent to the Office of Laboratory Services by health care providers for regional jails, correctional or juvenile facilities shall be performed at no cost to the jails, facilities or health care providers.

4.3.b.6. HIV testing may be performed either by an oral test or by drawing blood and the test shall be done either at the correctional facility where the defendant or juvenile respondent is housed, or at the local health department in the individual's county of residence, or at an alternative health care facility designated in the order.

4.3.c. The Commissioner shall request access to all convicted sex offenders who test HIV positive for the purposes of contact notification consultation under the direction of the Commissioner. Contact notification information obtained from the convicted sex offender is protected information and shall be used by the Commissioner solely for referring individuals with a potential HIV exposure to HIV counseling and testing sources.

4.3.d. A person convicted or a juvenile adjudicated of the offenses described in this subsection may be required to undergo HIV-related testing and counseling immediately upon conviction or adjudication: Provided, That if the person convicted or adjudicated has been tested in accordance with the provisions of subdivision 4.3.b. of this subsection, that person need not be retested.

4.3.e. The HIV-related test result obtained from the convicted or adjudicated person is to be transmitted to the court and to the victim or the parent or legal guardian of the victim and after the convicted or adjudicated person is sentenced or disposition ordered for the adjudicated juvenile, the result of the HIV test shall be made part of the court record. If the convicted or adjudicated person is placed in the custody of the Division of Corrections or Regional Jail and Correctional Facility Authority, or if the adjudicated juvenile is placed in the custody of the Division of Juvenile Services or other out-of-home placement, the court shall transmit a copy of the convicted or adjudicated person's HIV-related test results to the appropriate custodial agency. The HIV-related test results shall be closed and confidential and disclosed by the court and the bureau only in accordance with the provisions of this subsection and section three of this article.

Notes

W. Va. Code R. § 64-64-4