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| Public Act 095-0007 |
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AN ACT concerning health.
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Be it enacted by the People of the State of Illinois, | ||||
represented in the General Assembly:
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Section 5. The AIDS Confidentiality Act is amended by | ||||
changing Sections 2, 3, 4, 5, 6, 7, 8, 11, 13, 15, and 16 and by | ||||
adding Section 9.5 as follows:
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(410 ILCS 305/2) (from Ch. 111 1/2, par. 7302)
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Sec. 2. The General Assembly finds that:
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(1) The use of tests designed to reveal a condition | ||||
indicative of Human
Immunodeficiency Virus (HIV) infection can | ||||
be a valuable
tool in protecting
the public health.
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(2) Despite existing laws, regulations and professional | ||||
standards which
require or promote the informed, voluntary and | ||||
confidential use of tests
designed to reveal HIV infection, | ||||
many members of the public are deterred
from seeking such | ||||
testing because they misunderstand the nature of the test
or | ||||
fear that test results will be disclosed without their consent.
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(3) The public health will be served by facilitating | ||||
informed,
voluntary and confidential use of tests designed to | ||||
reveal HIV infection.
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(4) The public health will also be served by expanding the | ||||
availability of informed, voluntary, and confidential HIV | ||||
testing and making HIV testing a routine part of general | ||||
medical care, as recommended by the United States Centers for | ||
Disease Control and Prevention.
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(Source: P.A. 85-677; 85-679.)
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(410 ILCS 305/3) (from Ch. 111 1/2, par. 7303)
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Sec. 3. When used in this Act:
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(a) "Department" means the Illinois Department of Public | ||
Health.
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(b) "AIDS" means acquired immunodeficiency syndrome.
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(c) "HIV" means the Human Immunodeficiency Virus or
any | ||
other identified causative agent of AIDS.
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(d) "Informed
Written informed consent" means a written or | ||
verbal
an
agreement in writing executed by the subject of a | ||
test or the subject's
legally authorized representative | ||
without undue inducement or any element
of force, fraud, | ||
deceit, duress or other form of constraint or coercion,
which | ||
entails at least the following pre-test information:
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(1) a fair explanation of the test, including its purpose, | ||
potential
uses, limitations and the meaning of its results; and
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(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.
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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 | ||
decline testing. Nothing in this Act shall prohibit a health | ||
care provider from combining a form used to obtain informed | ||
consent for HIV testing 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.
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(e) "Health facility" means a hospital, nursing home, blood | ||
bank, blood
center, sperm bank, or other health care | ||
institution, including any "health
facility" as that term is | ||
defined in the Illinois Finance Authority
Act.
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(f) "Health care provider" means any health care | ||
professional, nurse,
paramedic,
psychologist or other person | ||
providing medical, nursing, psychological, or
other health | ||
care services of any kind.
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(f-5) "Health care professional" means (i) a licensed | ||
physician, (ii) a
physician assistant
to whom the physician | ||
assistant's supervising physician has delegated the
provision | ||
of AIDS and
HIV-related health services, (iii) an advanced | ||
practice registered nurse who
has a written
collaborative | ||
agreement with a collaborating physician which authorizes the
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provision of AIDS
and HIV-related health services, (iv) a | ||
licensed dentist, (v) a licensed
podiatrist, or (vi) an
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individual certified to provide HIV testing and counseling by a | ||
state or local
public health
department.
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(g) "Test" or "HIV test" means a test to determine the | ||
presence of the
antibody or antigen to HIV, or of HIV | ||
infection.
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(h) "Person" includes any natural person, partnership, | ||
association,
joint venture, trust, governmental entity, public | ||
or private corporation,
health facility or other legal entity.
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(Source: P.A. 93-205, eff. 1-1-04; 93-482, eff. 8-8-03; revised | ||
9-12-03.)
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(410 ILCS 305/4) (from Ch. 111 1/2, par. 7304)
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Sec. 4. No person may order an HIV test without first | ||
receiving
the documented
written informed consent
of the | ||
subject of the test or the subject's legally authorized
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representative. 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.
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(Source: P.A. 85-1248.)
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(410 ILCS 305/5) (from Ch. 111 1/2, par. 7305)
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Sec. 5. No health care professional may order an HIV test
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without
making available to
the person tested pre-test
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information about
the meaning
of the test results, the | ||
availability of additional or confirmatory
testing, if | ||
appropriate, and the availability of referrals for further
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information or counseling.
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(Source: P.A. 93-482, eff. 8-8-03.)
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(410 ILCS 305/6) (from Ch. 111 1/2, par. 7306)
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Sec. 6. Any individual seeking an HIV test shall have the | ||
right to anonymous testing, unless identification of the test | ||
subject is otherwise required. Anonymous testing shall be | ||
performed after pre-test information is provided and informed | ||
consent is obtained, using a coded system that does not link | ||
individual identity with the request or result. A health care | ||
facility or health care provider that does not provide | ||
anonymous testing shall refer an individual requesting an | ||
anonymous test to a site where it is available.
A subject of a | ||
test
who wishes to remain anonymous shall have the right to do | ||
so, and
to provide written informed consent by using a coded | ||
system
that does not link individual identity with the request | ||
or result,
except when written informed consent is not required | ||
by law.
The Department may, if it deems necessary,
promulgate | ||
regulations exempting blood banks, as defined in
the Illinois | ||
Blood Bank Act, from the
requirements of this Section.
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(Source: P.A. 85-1248; 85-1399; 85-1440.)
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(410 ILCS 305/7) (from Ch. 111 1/2, par. 7307) | ||
Sec. 7. (a) Notwithstanding the provisions of Sections 4, 5
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and 6 of this Act, written informed consent is not required for | ||
a health
care provider or health facility to perform a test | ||
when the health care
provider or health facility procures, | ||
processes, distributes or uses a
human body part donated for a | ||
purpose specified under the Illinois
Anatomical Gift Act, or | ||
semen provided prior to the effective date of this
Act for the | ||
purpose of artificial insemination, and such a test is
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necessary to assure medical acceptability of such gift or semen | ||
for the
purposes intended.
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(b) Informed
Written informed consent is not required for a | ||
health care
provider or health facility to perform a test when | ||
a health care provider
or employee of a health facility, or a | ||
firefighter or an EMT-A, EMT-I or EMT-P,
is involved in an | ||
accidental direct skin or mucous membrane contact with
the | ||
blood or bodily fluids of an individual which is of a nature | ||
that may
transmit HIV, as determined by a physician in his | ||
medical judgment. Should
such test prove to be positive, the | ||
patient and the health care provider,
health facility employee, | ||
firefighter, EMT-A, EMT-I, or EMT-P shall be
provided | ||
appropriate counseling consistent with this Act.
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(c) Informed
Written informed consent is not required for a | ||
health care
provider or health facility to perform a test when | ||
a law enforcement
officer is involved in the line of duty in a | ||
direct skin or mucous membrane
contact with the blood or bodily | ||
fluids of an individual which is of a
nature that may transmit | ||
HIV, as determined by a physician in his medical
judgment. | ||
Should such test prove to be positive, the patient shall be
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provided appropriate counseling consistent with this Act. For | ||
purposes of
this subsection (c), "law enforcement officer" | ||
means any person employed by
the State, a county or a | ||
municipality as a policeman, peace officer,
auxiliary | ||
policeman, correctional officer or in some like position
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involving the enforcement of the law and protection of the | ||
public interest
at the risk of that person's life.
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(Source: P.A. 93-794, eff. 7-22-04.)
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(410 ILCS 305/8) (from Ch. 111 1/2, par. 7308)
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Sec. 8. Notwithstanding the provisions of Sections 4 and 5 | ||
of this Act,
written informed consent, and pre-test
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information and counseling are not required for the
performance | ||
of an HIV test: (a)
for the purpose of research, if the testing | ||
is performed in such a way that
the identity of the test | ||
subject is not known and may not be retrieved by
the | ||
researcher, and in such a way that the test subject is not | ||
informed of
the results of the testing, or (b) when in the | ||
judgment of the physician,
such testing is medically indicated | ||
to provide appropriate diagnosis and
treatment to the subject | ||
of the test, provided that the subject of the test
has | ||
otherwise provided his or her consent to such physician for | ||
medical treatment.
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(Source: P.A. 85-1399.)
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(410 ILCS 305/9.5 new) | ||
Sec. 9.5. Delivery of test results. | ||
(a) The Department shall develop rules regarding the | ||
delivery of HIV test results to patients. | ||
(b) The subject of the test or the subject's legally | ||
authorized representative shall be notified by personal | ||
contact whenever possible of the confirmed positive result of | ||
an HIV test. When the subject or the subject's legally | ||
authorized representative is notified of a confirmed positive | ||
test result, the health care provider or professional shall | ||
provide the subject or the subject's legally authorized | ||
representative with a referral to counseling in connection with | ||
the confirmed positive test result and a referral to an | ||
appropriate medical facility for the treatment and management | ||
of HIV. | ||
(c) 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 test | ||
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.
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(410 ILCS 305/11) (from Ch. 111 1/2, par. 7311)
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Sec. 11. Notwithstanding the provisions of Section 4 of | ||
this Act,
written informed consent is not required for the | ||
performance of an HIV test
upon a person who is specifically | ||
required by law to be so tested.
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(Source: P.A. 85-677; 85-679.)
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(410 ILCS 305/13) (from Ch. 111 1/2, par. 7313)
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Sec. 13. Any person aggrieved by a violation of this Act or | ||
of a
regulation promulgated hereunder shall have a right of | ||
action in the
circuit court and may recover for each violation:
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(1) Against any person who negligently violates a provision | ||
of this Act
or the regulations promulgated hereunder, | ||
liquidated damages of $2,000
$1000 or
actual damages, whichever | ||
is greater.
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(2) Against any person who intentionally or recklessly | ||
violates a
provision of this Act or the regulations promulgated | ||
hereunder, liquidated
damages of $10,000
$5000 or actual | ||
damages, whichever is greater.
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(3) Reasonable attorney fees.
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(4) Such other relief, including an injunction, as the | ||
court may deem appropriate.
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(Source: P.A. 85-677; 85-679.)
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(410 ILCS 305/15) (from Ch. 111 1/2, par. 7315)
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Sec. 15. Nothing in this Act shall be construed to impose | ||
civil
liability or criminal sanction for disclosure of a test
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result in accordance with any reporting requirement of the | ||
Department for a
diagnosed case of HIV infection, AIDS or a | ||
related condition.
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Nothing in this Act shall be construed to impose civil | ||
liability or
criminal sanction for performing a test without | ||
written informed consent
pursuant to the provisions of | ||
subsection (b) or (c) of Section 7 of this Act.
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(Source: P.A. 86-887.)
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(410 ILCS 305/16) (from Ch. 111 1/2, par. 7316)
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Sec. 16. The Department shall promulgate rules and | ||
regulations
concerning implementation and enforcement of this | ||
Act. The rules and
regulations promulgated by the Department | ||
pursuant to this Act may include
procedures for taking | ||
appropriate action with regard to health care
facilities or | ||
health care providers which violate this Act or the
regulations | ||
promulgated hereunder. The provisions of The Illinois
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Administrative Procedure Act shall apply to all administrative | ||
rules and
procedures of the Department pursuant to this Act, | ||
except that in case of
conflict between The Illinois | ||
Administrative Procedure Act and this Act,
the provisions of | ||
this Act shall control. The Department shall conduct training, | ||
technical assistance, and outreach activities, as needed, to | ||
implement routine HIV testing in healthcare medical settings.
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(Source: P.A. 85-677; 85-679.)
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