AIDS/HIV and AIDS-Related Condition

No state agency, political subdivision, agency of local government or private non-profit corporation receiving state or local government funds shall refuse to admit as a patient, or to provide services to, any individual solely because he refuses to consent to an HIV test or to disclose HIV test results.  However, it does not prevent a health care practitioner from referring an individual he has reason to believe may have AIDS or an AIDS-related condition to an appropriate health care provider or facility, if the referral is based on reasonable professional judgment and not solely on grounds of the refusal of the individual to consent to an HIV test or to disclose the result of an HIV test.  ORC § 3701.245 (A), (B)

Disclosure of the results of an HIV test or a diagnosis of AIDS to a health care provider, or an agent or employee of a health care facility or a health care provider is proper only if the provider, agent or employee has a medical need to know the information and is personally participating in the diagnosis, care or treatment of a patient.  One may not request disclosure solely for the purpose of identifying an individual who has a positive HIV test result or has been diagnosed as having AIDS or and AIDS-related condition in order to refuse to treat the individual.  Also, referral of an individual to another health care provider or facility based on reasonable professional judgment does not constitute refusal to treat the individual.  ORC § 3701.243 (B)

Any person designated by a rule adopted by the Public Health Council shall promptly report every case of AIDS, every AIDS-related condition and every confirmed positive HIV test to the Department of Health.  In each county, the Health Director shall designate the Health Commissioner of the health district in his or her county to receive the reports.  ORC § 3701.24 (C)

Any disclosure of HIV test results must be in writing and accompanied by a written statement that contains the following or substantially similar language:

This information has been disclosed to you from a confidential record, protected from disclosure by state law.  You shall make no further disclosure of this information without specific, written and informed release of the individual to whom it pertains or as otherwise permitted by law.  A general authorization for the release of medical or other information is not sufficient for the purpose of the release of HIV test results or diagnoses. ORC § 3701.243 (E)

Lastly, no one who possesses knowledge that an individual other than himself has or may have AIDS, an AIDS-related condition or a positive HIV test is liable for failing to disclose that information to any person, unless disclosure is expressly required by law.  ORC § 3701.244 (H)

Disclosure of AIDS/HIV Information

The results of an HIV test or the identity of an individual on whom an HIV test was performed or who was diagnosed as having AIDS or an AIDS-related condition may be disclosed only to the following:

(a)        An individual who was tested, his or her legal guardian, his or her spouse or any sexual partner;

(b)        A person to whom disclosure is authorized by a written release executed by the individual tested or by his or her legal guardian and specifying to whom disclosure of test results or diagnosis is authorized and the time period during which the release is effective;

(c)        The individual’s health care practitioner;

(d)        The Department of Health or Health Commissioner when required by law…;

(e)        Health care facility staff committees or accreditation or oversight review organizations conducting program monitoring, program evaluation or service reviews;

(f)        A health care provider, emergency medical services worker or peace officer who sustained a significant exposure to the body fluids of another individual, if that individual was tested, but the identity of the individual tested shall not be revealed.  ORC § 3701.243 (B)

An emergency medical services worker who believes he has suffered significant exposure to the body fluids of an individual or to a contagious or infectious disease through contact with a patient may submit to the health care facility or coroner that received the patient a written request to be notified of the results of any test performed on the patient to determine the presence of a contagious or infections disease.  ORC § 3701.248 (B)

The health care facility or coroner who receives a written request for notification shall give oral notification of the presence of a contagious or infectious disease or of a confirmed positive test result within two days following the determination.  The infected worker, his or her supervisor and the infection control committee are also notified, but it shall not include the name of the patient.  Notification, in writing, shall follow oral notice within three days.   If the test results are positive or indicate the presence of a disease, notification must include the name of the disease, its signs and symptoms, the date of exposure, the incubation period, the mode of transmission of the disease, the medical precautions necessary to prevent transmission and the appropriate prophylaxis, treatment and counseling for the disease.  However, notice does not include the name of the patient or decedent.  ORC § 3701.248

Any person or government agency may seek access to or authority to disclose the HIV test records of an individual by bringing an action in a court of common pleas requesting disclosure or authority to disclose the HIV test results.  The court may issue an order granting access to or authority to disclose the test results only if the court finds by clear and convincing evidence that there is compelling need for disclosure of the information that cannot be accommodated by other means.  In assessing compelling need, the court shall weigh the need for disclosure against the privacy right of the individual tested sand against any disservice to the public interest that might result from the disclosure, such as discrimination against the individual or the deterrence of others from being tested.  ORC § 3701.243

Court Ordered AIDS/HIV Testing

A person who believes he or she may have been exposed to HIV infection while rendering health or emergency care to another person, or a peace officer who believes he may have been exposed in the performance of his or her duties, may apply to a probate court for an order compelling the other person to undergo HIV testing.  An affidavit must accompany the complaint stating:

(a)        The plaintiff sustained a significant exposure to body fluids of the defendant;

(b)        There is reason to believe the defendant may have an HIV infection;

(c)        The defendant has refused to be tested for the HIV virus; and

(d)        Within seven days of exposure the plaintiff took an HIV test.  The court may order the defendant to undergo HIV testing if it finds by clear and convincing evidence that the plaintiff has proved the matters attested to in the affidavit, he or she has demonstrated that there is a compelling need for the results of the test and there is no other means to accommodate the need.  ORC § 3701.247 (A)

**Editor’s Note:  Presently, legislation has passed the Ohio General Assembly requiring the State Medical Board to establish rules concerning blood and body fluid precautions for those practitioners performing exposure prone invasive procedures.  Moreover, any practitioner who fails to follow these rules would subject himself or herself to possible disciplinary proceedings.   However, this Act is not yet effective.

AIDS/HIV and AIDS-Related Condition