Synopsis:
Effective June 1, 2008, a health care facility or provider may offer opt-out HIV testing where the subject is informed that he or she will be tested for HIV unless he or she refuses.  Consent may be given verbally or in writing and must be documented. This memo explains the changes in provisions of the AIDS Confidentiality Act made by SB 929 (now Public Act 95-0007) that relate to pre-test information, informed consent, and delivery of HIV test results.  Please route this memo to the Medical Director, and the Directors of Patient Care Services,  Infection Control, and Emergency Services. 

BACKGROUND. In an effort to expand the availability of informed, voluntary, and confidential HIV testing and make HIV testing a more routine part of general medical care as recommended by the U.S. Centers for Disease Control and Prevention, the Illinois General Assembly has amended the Aids Confidentiality Act (Act) to allow for more streamlined testing procedures. Since the changes are not effective until June 1, 2008, hospitals must continue to follow existing law until that time.

This memo explains the changes to the Act made by P.A. 95-0007:

OPT-OUT TESTING. A health care facility or provider may offer opt-out HIV testing where the subject or the subject’s legally authorized representative is informed that the subject will be tested for HIV unless he or she refuses. The health care facility or provider must document the provision of informed consent, including pre-test information and whether the subject or the subject’s legally authorized representative declined the offer of HIV testing.

PRE-TEST INFORMATION. Pre-test information may be provided in writing, verbally or by video, electronic or other means. The subject must be offered an opportunity to ask questions about the HIV test, and to decline testing.

The actual pre-test information has not changed, only the methods by which it may be provided. Pre-test information includes:

(1) a fair explanation of the test, including its purpose, potential uses, limitations and the meaning of its results; and (2) a fair explanation of the procedures to be followed, including the voluntary nature of the test, the right to withdraw consent to the testing process at any time, the right to anonymity to the extent provided by law with respect to participation in the test and disclosure of test results, and the right to confidential treatment of information identifying the subject of the test and the results of the test, to the extent provided by law.

INFORMED CONSENT. After being given the pre-test information, and having the opportunity to ask questions, if a test subject desires to be tested, he or she may give consent verbally or in writing.

• Documentation of Informed Consent. The health care facility or provider must document the provision of informed consent, including pre-test information, and whether the subject or the subject’s legally authorized representative declined the offer of HIV testing. The subject’s provision of informed consent, or his declination, can be accomplished by a notation in the subject’s chart. If the subject consents in writing, the consent form for the HIV testing may be combined with forms used to obtain written consent for general medical care or any other medical test or procedure, provided that the forms make it clear that the subject may consent to general medical care, tests or medical procedures without being required to consent to HIV testing and clearly explain how the subject may opt-out of HIV testing.
• Ordering the HIV Test. No health care professional may order an HIV test without making available to the subject pre-test information about the meaning of the test results, the availability of additional or confirmatory testing, if appropriate, and the availability of referrals for further information or counseling. In addition, no person may order an HIV test without first receiving the documented informed consent of the test subject or the subject’s legally authorized representative.

RIGHT TO ANONYMOUS TESTING. This provision is substantially unchanged; however, an important addition now allows for a referral to a test site that provides anonymous testing: An individual has the right to anonymous testing, using a coded system that does not link individual identity with the request or result, unless identification of the test subject is otherwise required. A health care facility or provider that does not provide anonymous testing shall refer an individual requesting an anonymous test to a site where it is available. A list of the anonymous test sites is available on the IDPH website at http://www.idph.state.il.us/aids/test_serve_sites.htm.

DELIVERY OF TEST RESULTS. This new section of the Act requires the following:

However, a health care provider shall not be in violation of this Section when an attempt to contact the test subject or the subject’s legally authorized representative at the address or telephone number provided by the test subject or the subject’s legally authorized representative does not result in contact and notification or where an attempt to deliver results by personal contact has not been successful. The Department of Public Health will develop rules regarding the delivery of HIV test results to patients.

INCREASED PENALTIES FOR VIOLATION. The amounts that may be recovered by a person aggrieved by a violation of the Act are increased to liquidated damages of $2,000 or actual damages, whichever is greater, for negligent violation and $10,000 or actual damages, whichever is greater, for intentionally or recklessly violating the Act.

NEXT STEPS. The law is effective June 1, 2008. Hospitals should continue to follow the existing law until that date. In addition, SB 929 (now P.A. 95-0007) requires the Department of Public Health to develop rules regarding the delivery of HIV test results, and to conduct training, technical assistance, and outreach activities, as needed, to implement routine HIV testing in healthcare settings. We will keep you informed of any additional developments.

The full text of SB 929 is available at the website of the Illinois General Assembly: http://www.ilga.gov.  In the "By Number" Box on the left side of the screen, enter "SB 929." Hit "GO." Then click on "Full Text in the upper left corner to read SB 929.

Staff Contact: Barb Haller: (630) 276-5474