Office of AIDS
HIV Testing in Health Care Settings - Legal Background
In California, two recent changes to HIV testing law have supported the effort to bring “opt-out” (routine offering with the option to decline to take an HIV test) HIV testing to the state’s health care facilities.
1. As of January 1, 2008, Assembly Bill (AB) 682 (Berg, Chapter 550, Statutes of 2007), added California Health and Safety (H&S) Code Section 120990 (PDF) which eliminated the requirement for written consent for an HIV test when ordered by a medical care provider.
Medical care providers ordering HIV tests under H&S Code Section 120990(a) are not required to obtain written consent for an HIV test, nor are laboratories processing HIV tests ordered by medical care providers under H&S Code Section 120990(a) required to obtain either written or oral consent to process the ordered test. Furthermore:
Continued requirements for written consent under H&S Code Section 120990(c) refer to HIV testing provided and/or processed in non-medical settings (such as OA-funded confidential HIV test sites).
Instead of required written consent, H&S Code Section 120990(a) requires medical care providers to do the following before they order an HIV test:
1) Inform the patient that an HIV test is planned;
2) Provide information about the HIV test;
3) Inform the patient that there are numerous treatment options available for a patient who tests positive for HIV and that a person who tests negative for HIV should continue to be routinely tested;
4) Advise the patient that he or she has the right to decline the HIV test; and
5) If the patient declines the HIV test, document that fact in the patient’s medical file.
AB 682 also amended H&S Code Section 125090 (PDF) which eliminated the requirement for written consent for HIV testing for pregnant women. H&S Code Section 125090 states that if a woman does not have an HIV test documented in her prenatal record during prenatal care or at the time of labor and delivery, the physician and surgeon or other person engaged in the prenatal care or attending the woman shall ensure that the woman is informed about the:
1) Intent to perform an HIV test,
2) Routine nature of the test,
3) Purpose of the test,
4) Risks and benefits of the test,
5) Risk of transmission of HIV, that approved treatments are known to decrease the risk of perinatal transmission of HIV, and
6) Right to decline HIV testing.
If the woman verbally accepts testing, she must then receive an HIV test “by a method that will ensure the earliest possible results.” Currently, there are six HIV tests available that can provide preliminary results within 20 minutes; therefore, hospitals should be able to provide rapid HIV testing in labor and delivery. If a woman receives appropriate HIV treatment during labor and delivery, she can decrease the chances of transmitting HIV to her infant by approximately one-half.
2. As of January 1, 2009, AB 1894 (Krekorian, Chapter 631, Statutes of 2008) added H&S Code Section 1367.46 (PDF) and Insurance Code Section 10123.91 (PDF) to require individual and group health care service plans and health insurers to provide coverage for testing for HIV in medical care settings regardless of whether the testing is related to the primary diagnosis. Insurance Code Section 10123.91 further states that reimbursement shall be provided according to the respective principles and policies of the health insurer. This statute does not cover reimbursement through all public funding.
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