SB0929sam001 95TH GENERAL ASSEMBLY

Sen. Carol Ronen

Filed: 5/23/2007

 

 


 

 


 
09500SB0929sam001 LRB095 05734 KBJ 36706 a

1
AMENDMENT TO SENATE BILL 929

2     AMENDMENT NO. ______. Amend Senate Bill 929 by replacing
3 everything after the enacting clause with the following:
 
4     "Section 5. The AIDS Confidentiality Act is amended by
5 changing Sections 2, 3, 4, 5, 6, 7, 8, 11, 13, 15, and 16 and by
6 adding Section 9.5 as follows:
 
7     (410 ILCS 305/2)  (from Ch. 111 1/2, par. 7302)
8     Sec. 2. The General Assembly finds that:
9     (1) The use of tests designed to reveal a condition
10 indicative of Human Immunodeficiency Virus (HIV) infection can
11 be a valuable tool in protecting the public health.
12     (2) Despite existing laws, regulations and professional
13 standards which require or promote the informed, voluntary and
14 confidential use of tests designed to reveal HIV infection,
15 many members of the public are deterred from seeking such
16 testing because they misunderstand the nature of the test or

 

 

09500SB0929sam001 - 2 - LRB095 05734 KBJ 36706 a

1 fear that test results will be disclosed without their consent.
2     (3) The public health will be served by facilitating
3 informed, voluntary and confidential use of tests designed to
4 reveal HIV infection.
5     (4) The public health will also be served by expanding the
6 availability of informed, voluntary, and confidential HIV
7 testing and making HIV testing a routine part of general
8 medical care, as recommended by the United States Centers for
9 Disease Control and Prevention.
10 (Source: P.A. 85-677; 85-679.)
 
11     (410 ILCS 305/3)  (from Ch. 111 1/2, par. 7303)
12     Sec. 3. When used in this Act:
13     (a) "Department" means the Illinois Department of Public
14 Health.
15     (b) "AIDS" means acquired immunodeficiency syndrome.
16     (c) "HIV" means the Human Immunodeficiency Virus or any
17 other identified causative agent of AIDS.
18     (d) "Informed Written informed consent" means a written or
19 verbal an agreement in writing executed by the subject of a
20 test or the subject's legally authorized representative
21 without undue inducement or any element of force, fraud,
22 deceit, duress or other form of constraint or coercion, which
23 entails at least the following pre-test information:
24     (1) a fair explanation of the test, including its purpose,
25 potential uses, limitations and the meaning of its results; and

 

 

09500SB0929sam001 - 3 - LRB095 05734 KBJ 36706 a

1     (2) a fair explanation of the procedures to be followed,
2 including the voluntary nature of the test, the right to
3 withdraw consent to the testing process at any time, the right
4 to anonymity to the extent provided by law with respect to
5 participation in the test and disclosure of test results, and
6 the right to confidential treatment of information identifying
7 the subject of the test and the results of the test, to the
8 extent provided by law.
9     Pre-test information may be provided in writing, verbally,
10 or by video, electronic, or other means. The subject must be
11 offered an opportunity to ask questions about the HIV test and
12 decline testing. Nothing in this Act shall prohibit a health
13 care provider from combining a form used to obtain informed
14 consent for HIV testing with forms used to obtain written
15 consent for general medical care or any other medical test or
16 procedure provided that the forms make it clear that the
17 subject may consent to general medical care, tests, or medical
18 procedures without being required to consent to HIV testing and
19 clearly explain how the subject may opt-out of HIV testing.
20     (e) "Health facility" means a hospital, nursing home, blood
21 bank, blood center, sperm bank, or other health care
22 institution, including any "health facility" as that term is
23 defined in the Illinois Finance Authority Act.
24     (f) "Health care provider" means any health care
25 professional, nurse, paramedic, psychologist or other person
26 providing medical, nursing, psychological, or other health

 

 

09500SB0929sam001 - 4 - LRB095 05734 KBJ 36706 a

1 care services of any kind.
2     (f-5) "Health care professional" means (i) a licensed
3 physician, (ii) a physician assistant to whom the physician
4 assistant's supervising physician has delegated the provision
5 of AIDS and HIV-related health services, (iii) an advanced
6 practice registered nurse who has a written collaborative
7 agreement with a collaborating physician which authorizes the
8 provision of AIDS and HIV-related health services, (iv) a
9 licensed dentist, (v) a licensed podiatrist, or (vi) an
10 individual certified to provide HIV testing and counseling by a
11 state or local public health department.
12     (g) "Test" or "HIV test" means a test to determine the
13 presence of the antibody or antigen to HIV, or of HIV
14 infection.
15     (h) "Person" includes any natural person, partnership,
16 association, joint venture, trust, governmental entity, public
17 or private corporation, health facility or other legal entity.
18 (Source: P.A. 93-205, eff. 1-1-04; 93-482, eff. 8-8-03; revised
19 9-12-03.)
 
20     (410 ILCS 305/4)  (from Ch. 111 1/2, par. 7304)
21     Sec. 4. No person may order an HIV test without first
22 receiving the documented written informed consent of the
23 subject of the test or the subject's legally authorized
24 representative. A health care facility or provider may offer
25 opt-out HIV testing where the subject or the subject's legally

 

 

09500SB0929sam001 - 5 - LRB095 05734 KBJ 36706 a

1 authorized representative is informed that the subject will be
2 tested for HIV unless he or she refuses. The health care
3 facility or provider must document the provision of informed
4 consent, including pre-test information, and whether the
5 subject or the subject's legally authorized representative
6 declined the offer of HIV testing.
7 (Source: P.A. 85-1248.)
 
8     (410 ILCS 305/5)  (from Ch. 111 1/2, par. 7305)
9     Sec. 5. No health care professional may order an HIV test
10 without making available to the person tested pre-test
11 information about the meaning of the test results, the
12 availability of additional or confirmatory testing, if
13 appropriate, and the availability of referrals for further
14 information or counseling.
15 (Source: P.A. 93-482, eff. 8-8-03.)
 
16     (410 ILCS 305/6)  (from Ch. 111 1/2, par. 7306)
17     Sec. 6. Any individual seeking an HIV test shall have the
18 right to anonymous testing, unless identification of the test
19 subject is otherwise required. Anonymous testing shall be
20 performed after pre-test information is provided and informed
21 consent is obtained, using a coded system that does not link
22 individual identity with the request or result. A health care
23 facility or health care provider that does not provide
24 anonymous testing shall refer an individual requesting an

 

 

09500SB0929sam001 - 6 - LRB095 05734 KBJ 36706 a

1 anonymous test to a site where it is available. A subject of a
2 test who wishes to remain anonymous shall have the right to do
3 so, and to provide written informed consent by using a coded
4 system that does not link individual identity with the request
5 or result, except when written informed consent is not required
6 by law. The Department may, if it deems necessary, promulgate
7 regulations exempting blood banks, as defined in the Illinois
8 Blood Bank Act, from the requirements of this Section.
9 (Source: P.A. 85-1248; 85-1399; 85-1440.)
 
10     (410 ILCS 305/7)  (from Ch. 111 1/2, par. 7307)
11     Sec. 7. (a) Notwithstanding the provisions of Sections 4, 5
12 and 6 of this Act, written informed consent is not required for
13 a health care provider or health facility to perform a test
14 when the health care provider or health facility procures,
15 processes, distributes or uses a human body part donated for a
16 purpose specified under the Illinois Anatomical Gift Act, or
17 semen provided prior to the effective date of this Act for the
18 purpose of artificial insemination, and such a test is
19 necessary to assure medical acceptability of such gift or semen
20 for the purposes intended.
21     (b) Informed Written informed consent is not required for a
22 health care provider or health facility to perform a test when
23 a health care provider or employee of a health facility, or a
24 firefighter or an EMT-A, EMT-I or EMT-P, is involved in an
25 accidental direct skin or mucous membrane contact with the

 

 

09500SB0929sam001 - 7 - LRB095 05734 KBJ 36706 a

1 blood or bodily fluids of an individual which is of a nature
2 that may transmit HIV, as determined by a physician in his
3 medical judgment. Should such test prove to be positive, the
4 patient and the health care provider, health facility employee,
5 firefighter, EMT-A, EMT-I, or EMT-P shall be provided
6 appropriate counseling consistent with this Act.
7     (c) Informed Written informed consent is not required for a
8 health care provider or health facility to perform a test when
9 a law enforcement officer is involved in the line of duty in a
10 direct skin or mucous membrane contact with the blood or bodily
11 fluids of an individual which is of a nature that may transmit
12 HIV, as determined by a physician in his medical judgment.
13 Should such test prove to be positive, the patient shall be
14 provided appropriate counseling consistent with this Act. For
15 purposes of this subsection (c), "law enforcement officer"
16 means any person employed by the State, a county or a
17 municipality as a policeman, peace officer, auxiliary
18 policeman, correctional officer or in some like position
19 involving the enforcement of the law and protection of the
20 public interest at the risk of that person's life.
21 (Source: P.A. 93-794, eff. 7-22-04.)
 
22     (410 ILCS 305/8)  (from Ch. 111 1/2, par. 7308)
23     Sec. 8. Notwithstanding the provisions of Sections 4 and 5
24 of this Act, written informed consent, and pre-test
25 information and counseling are not required for the performance

 

 

09500SB0929sam001 - 8 - LRB095 05734 KBJ 36706 a

1 of an HIV test: (a) for the purpose of research, if the testing
2 is performed in such a way that the identity of the test
3 subject is not known and may not be retrieved by the
4 researcher, and in such a way that the test subject is not
5 informed of the results of the testing, or (b) when in the
6 judgment of the physician, such testing is medically indicated
7 to provide appropriate diagnosis and treatment to the subject
8 of the test, provided that the subject of the test has
9 otherwise provided his or her consent to such physician for
10 medical treatment.
11 (Source: P.A. 85-1399.)
 
12     (410 ILCS 305/9.5 new)
13     Sec. 9.5. Delivery of test results.
14     (a) The Department shall develop rules regarding the
15 delivery of HIV test results to patients.
16     (b) The subject of the test or the subject's legally
17 authorized representative shall be notified by personal
18 contact whenever possible of the confirmed positive result of
19 an HIV test. When the subject or the subject's legally
20 authorized representative is notified of a confirmed positive
21 test result, the health care provider or professional shall
22 provide the subject or the subject's legally authorized
23 representative with a referral to counseling in connection with
24 the confirmed positive test result and a referral to an
25 appropriate medical facility for the treatment and management

 

 

09500SB0929sam001 - 9 - LRB095 05734 KBJ 36706 a

1 of HIV.
2     (c) A health care provider shall not be in violation of
3 this Section when an attempt to contact the test subject or the
4 subject's legally authorized representative at the address or
5 telephone number provided by the test subject or the test
6 subject's legally authorized representative does not result in
7 contact and notification or where an attempt to deliver results
8 by personal contact has not been successful.
 
9     (410 ILCS 305/11)  (from Ch. 111 1/2, par. 7311)
10     Sec. 11. Notwithstanding the provisions of Section 4 of
11 this Act, written informed consent is not required for the
12 performance of an HIV test upon a person who is specifically
13 required by law to be so tested.
14 (Source: P.A. 85-677; 85-679.)
 
15     (410 ILCS 305/13)  (from Ch. 111 1/2, par. 7313)
16     Sec. 13. Any person aggrieved by a violation of this Act or
17 of a regulation promulgated hereunder shall have a right of
18 action in the circuit court and may recover for each violation:
19     (1) Against any person who negligently violates a provision
20 of this Act or the regulations promulgated hereunder,
21 liquidated damages of $2,000 $1000 or actual damages, whichever
22 is greater.
23     (2) Against any person who intentionally or recklessly
24 violates a provision of this Act or the regulations promulgated

 

 

09500SB0929sam001 - 10 - LRB095 05734 KBJ 36706 a

1 hereunder, liquidated damages of $10,000 $5000 or actual
2 damages, whichever is greater.
3     (3) Reasonable attorney fees.
4     (4) Such other relief, including an injunction, as the
5 court may deem appropriate.
6 (Source: P.A. 85-677; 85-679.)
 
7     (410 ILCS 305/15)  (from Ch. 111 1/2, par. 7315)
8     Sec. 15. Nothing in this Act shall be construed to impose
9 civil liability or criminal sanction for disclosure of a test
10 result in accordance with any reporting requirement of the
11 Department for a diagnosed case of HIV infection, AIDS or a
12 related condition.
13     Nothing in this Act shall be construed to impose civil
14 liability or criminal sanction for performing a test without
15 written informed consent pursuant to the provisions of
16 subsection (b) or (c) of Section 7 of this Act.
17 (Source: P.A. 86-887.)
 
18     (410 ILCS 305/16)  (from Ch. 111 1/2, par. 7316)
19     Sec. 16. The Department shall promulgate rules and
20 regulations concerning implementation and enforcement of this
21 Act. The rules and regulations promulgated by the Department
22 pursuant to this Act may include procedures for taking
23 appropriate action with regard to health care facilities or
24 health care providers which violate this Act or the regulations

 

 

09500SB0929sam001 - 11 - LRB095 05734 KBJ 36706 a

1 promulgated hereunder. The provisions of The Illinois
2 Administrative Procedure Act shall apply to all administrative
3 rules and procedures of the Department pursuant to this Act,
4 except that in case of conflict between The Illinois
5 Administrative Procedure Act and this Act, the provisions of
6 this Act shall control. The Department shall conduct training,
7 technical assistance, and outreach activities, as needed, to
8 implement routine HIV testing in healthcare medical settings.
9 (Source: P.A. 85-677; 85-679.)".