36-663. HIV-related testing; restrictions; exceptions

A. Except as otherwise specifically authorized or required by this state or by federal law, before an HIV-related test is ordered by a health care provider, the health care provider shall ensure that oral or written informed consent information is provided to the subject of the test who has capacity to consent or, if the subject lacks capacity to consent, to a person authorized pursuant to law to consent to health care for that person. For the purposes of this subsection, " informed consent information" means information that explains HIV infection and the meaning of a positive test result and that indicates that the patient may ask questions and decline testing.

B. This section does not apply to the performance of an HIV-related test:

1. By a health care provider or health facility in relation to the procuring, processing, distributing or use of a human body or a human body part, including organs, tissues, eyes, bones, arteries, blood, semen, milk or other body fluids, for use in medical research or therapy or for transplantation to other persons.

2. If testing is requested by a health care provider or first responder who has had an occupational significant exposure risk to the patient's blood or bodily fluid. HIV-related testing under this paragraph may be performed under a general consent to receive treatment, except in an emergency when consent may be implied. Such testing may be performed under this paragraph only on receipt of a written request from a health care provider or first responder who documents the occurrence and information regarding the nature of the occupational significant exposure risk and the report is reviewed and confirmed by a health care provider who is both licensed pursuant to title 32, chapter 13, 15 or 17 and competent to determine a significant exposure risk. A patient may not be forced to provide a blood sample for the purposes of this paragraph. When an HIV-related test is ordered, a health care provider shall provide the patient with the test results and information that explains HIV infection and the meaning of a positive or negative test result and that indicates that the patient may ask questions.

3. For the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher.

4. On a deceased person, if the test is conducted in order to determine the cause of death or for epidemiologic or public health purposes.

5. In the course of providing necessary emergency medical treatment to a patient who lacks capacity to consent to HIV-related testing and for whom no person authorized pursuant to law to consent to health care for that person can be identified on a timely basis if the testing is necessary for the diagnosis and treatment of the emergency condition. The attending physician shall document the existence of an emergency medical condition, the necessity of the HIV-related testing to diagnose and treat the emergency condition and the patient's lack of capacity.

6. On a patient who lacks capacity to consent and for whom no person authorized pursuant to law to consent to health care for that person can be identified on a timely basis if the HIV-related testing is directly related to and necessary for the diagnosis and treatment of the person's medical condition. HIV-related testing shall be performed under these circumstances only on written certification by the attending physician and a consulting physician that the HIV-related testing is directly related to and necessary for the diagnosis and treatment of the patient's medical condition.

7. That is performed on an anonymous basis at a public health agency.

C. A medical examiner or alternate medical examiner may provide a blood sample from a deceased person for the purpose of HIV-related testing pursuant to subsection B, paragraph 2 of this section. A medical examiner or alternate medical examiner is not required to perform an HIV-related test for an occupational significant exposure risk.