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AIDS Prevention Act - 1997

Part 10 AIDS Education and Prevention

Cross References:

Right of privacy guaranteed, Art. II, sec. 10, Mont. Const.
Uniform health care information, Title 50, ch. 16, part 5.

Law Review Articles:

Aids: A Crisis in Confidentiality, 62 S. Cal. L. Rev. 1701 (1989).

50-16-1001. Short title. This part may be cited as the "AIDS Prevention Act".

History: En. Sec. 1, Ch. 614, L. 1989.

50-16-1002. Statement of purpose.

(1) The legislature recognizes that the epidemic of human immunodeficiency virus (HIV) infection, the causative agent of acquired immune deficiency syndrome (AIDS), and related medical conditions constitutes a serious danger to the public health and welfare. In the absence of a vaccine or a cure and because of the sexual and intravenous drug use behaviors by which the virus is predominately spread, control of the epidemic is dependent on the education of those infected or at risk for infection.

(2) It is the intent of the legislature that education directed at preventing the transmission of HIV be provided to those infected and at risk of infection and to entreat such persons to come forward to determine their HIV infection status and to obtain appropriate education.

History: En. Sec. 2, Ch. 614, L. 1989.

50-16-1003. Definitions. As used in this part, the following definitions apply:

(1) "AIDS" means acquired immune deficiency syndrome as further defined by the department in accordance with standards promulgated by the centers for disease control of the United States public health service.

(2) "Contact" means a person who has been exposed to the test subject in a manner, voluntary or involuntary, that may allow HIV transmission in accordance with modes of transmission recognized by the centers for disease control of the United States public health service.

(3) "Department" means the department of public health and human services provided for in 2-15-2201.

(4) "Health care facility" means a health care institution, private or public, including but not limited to a hospital, nursing home, clinic, blood bank, blood center, sperm bank, or laboratory.

(5) "Health care provider" means a person who is licensed, certified, or otherwise authorized by the laws of this state or who is licensed, certified, or otherwise authorized by the laws of another state to provide health care in the ordinary course of business or practice of a profession. The term does not include a person who provides health care solely through the sale or dispensing of drugs or medical devices.

(6) "HIV" means the human immunodeficiency virus, identified as the causative agent of AIDS, and all HIV and HIV-related viruses that damage the cellular branch of the human immune or neurological systems and leave the infected person immunodeficient or neurologically impaired.

(7) "HIV-related condition" means a chronic disease resulting from infection with HIV, including but not limited to AIDS and asymptomatic seropositivity for HIV.

(8) "HIV-related test" means a test approved by the federal food and drug administration, including but not limited to an enzyme immunoassay and a western blot, that is designed to detect the presence of HIV or antibodies to HIV.

(9) "Informed consent" means a freely executed oral or written grant of permission by the subject of an HIV-related test, by the subject's legal guardian, or, if there is no legal guardian and the subject of the test is unconscious or otherwise mentally incapacitated, by the subject's next of kin or significant other or a person designated by the subject in hospital records to act on the person's behalf to perform an HIV-related test after the receipt of pretest counseling.

(10) "Legal guardian" means a person appointed by a court to assume legal authority for another who has been found incapacitated or, in the case of a minor, a person who has legal custody of the minor.

(11) "Local board" means a county, city, city-county, or district board of health.

(12) "Local health officer" means a county, city, city-county, or district health officer appointed by the local board.

(13) "Next of kin" means an individual who is a parent, adult child, grandparent, adult sibling, or legal spouse of a person.

(14) "Person" means an individual, corporation, organization, or other legal entity.

(15) "Posttest counseling" means counseling, conducted at the time that the HIV-related test results are given, and includes, at a minimum, written materials provided by the department.

(16) "Pretest counseling" means the provision of counseling to the subject prior to conduct of an HIV-related test, including, at a minimum, written materials developed and provided by the department.

(17) "Release of test results" means a written authorization for disclosure of HIV-related test results that:

(a) is signed and dated by the person tested or the person authorized to act for the person tested; and

(b) specifies the nature of the information to be disclosed and to whom disclosure is authorized.

(18) "Significant other" means an individual living in a current spousal relationship with another individual but who is not legally a spouse of that individual.

History: En. Sec. 3, Ch. 614, L. 1989; amd. Sec. 1, Ch. 544, L. 1991; amd. Sec. 111, Ch. 418, L. 1995; amd. Sec. 288, Ch. 546, L. 1995; amd. Sec. 1, Ch. 197, L. 1997; amd. Sec. 2, Ch. 524, L. 1997.

Compiler's Comments:

1997 Amendments: Chapter 197 in definition of health care provider, near middle of first sentence after "laws of this state", inserted "or who is licensed, certified, or otherwise authorized by the laws of another state"; in definition of written informed consent, in (a)(ii) after "confidentiality", substituted "specimen collection" for "blood drawing" and near end substituted "specimen" for "blood sample" (voided by Ch. 524); and made minor changes in style. Amendment effective April 3, 1997.

Chapter 524 in definition of contact deleted (a) that read: "(a) an individual identified by the subject of an HIV-related test as a past or present sexual partner or as a person with whom the subject has shared hypodermic needles or syringes"; inserted definition of informed consent; deleted definition of written informed consent that read: ""Written informed consent" means an agreement in writing that is freely executed by the subject of an HIV-related test, by the subject's legal guardian, or, if there is no legal guardian and the subject is unconscious or otherwise mentally incapacitated, by the subject's next of kin or significant other or a person designated by the subject in hospital records to act on the subject's behalf. The written informed consent must include at least the following:

(i) an explanation of the test, including its purpose, potential uses, limitations, and the meaning of its results;

(ii) an explanation of the procedures to be followed for confidentiality, blood drawing, and counseling, including notification that the test is voluntary and that consent may be withdrawn at any time until the blood sample is taken;

(iii) an explanation of whether and to whom the subject's name and test results may be disclosed;

(iv) a statement that the test may be obtained anonymously if the subject wishes;

(v) the name and address of a health care provider whom the subject approves to receive the subject's test results and to provide the subject with posttest counseling; and

(vi) if the consent is for a test being performed as part of an application for insurance, a statement that only a positive test result will be reported to the designated health care provider and that negative test results may be obtained by the subject from the insurance company.

(b) The department shall develop an agreement form that may be used for purposes of this subsection"; and made minor changes in style.

1995 Amendments: Chapter 418 in definition of Department substituted "department of public health" for "department of health and environmental sciences"; and made minor changes in style. Amendment effective July 1, 1995.

Chapter 546 in definition of Department substituted "department of public health and human services provided for in 2-15-2201" for "department of health and environmental sciences provided for in 2-15-2101". Amendment effective July 1, 1995.

Transition: Section 499, Ch. 418, L. 1995, provided: "The provisions of 2-15-131 through 2-15-137 apply to [this act]."

Saving Clause: Section 503, Ch. 418, L. 1995, was a saving clause.

Saving Clause: Section 571, Ch. 546, L. 1995, was a saving clause.

1991 Amendment: In definition of contact inserted (b) concerning a person exposed to the test subject in a manner allowing HIV transmission; in definition of HIV-related test substituted "test approved by the federal food and drug administration" for "laboratory test"; in definition of health care provider substituted present text concerning person authorized to provide health care for "physician, nurse, paramedic, psychologist, dentist, public health department agent, or other person providing medical, nursing, psychological, or other health care services of any kind"; inserted definitions of local board, local health officer, and next of kin; in definition of pretest counseling, after "provision of", substituted "counseling" for "written materials" and after "test" inserted "including, at a minimum"; in definition of release of test results, in (a) after "dated", inserted "by the person tested or the person authorized to act for the person tested"; inserted definition of significant other; in definition of written informed consent, in (a) after "guardian", inserted "or, if there is no legal guardian and the subject is unconscious or otherwise mentally incapacitated, by the subject's next of kin, significant other, or a person designated by the subject in hospital records to act on the subject's behalf,and", at end of (a)(ii) inserted "until the blood sample is taken", at beginning of (a)(iii) substituted "an explanation" for "a discussion", and inserted (a)(v) concerning name and address of health care provider and (a)(vi) concerning test performed as part of insurance application; and made minor changes in style. Amendment effective July 1, 1991.

Severability: Section 8, Ch. 544, L. 1991, was a severability clause.

Attorney General Opinions:

Conditions for Release of Information About HIV Test Subject -- Imminent Danger to Health or Safety: In reconciling the apparent conflict in the provision of medical information as contained in the Uniform Health Care Information Act and the AIDS Prevention Act, the Attorney General determined that a health care provider may release health care information about the subject of an HIV-related test, including the identity of the subject, to a contact, as defined in this section, without the subject's authorization, only when the health care provider reasonably believes that disclosure will avoid or minimize an imminent danger to the health or safety of the contact or other individual. 44 A.G. Op. 37 (1992).

50-16-1004. AIDS, HIV-related conditions, and HIV infection to be treated as other communicable diseases. It is the intent of the legislature to treat AIDS, HIV-related conditions, and HIV infection in the same manner as other communicable diseases, including sexually transmitted diseases, by adopting the most currently accepted public health practices with regard to testing, reporting, partner notification, and disease intervention. Nothing in this section is intended to prohibit the department from allowing testing for HIV infection to be performed and reported without identification of the subject of the test. The department shall adopt rules, as provided in 50-1-202, to reflect this policy.

History: En. Sec. 1, Ch. 524, L. 1997.

50-16-1005 and 50-16-1006 reserved.

50-16-1007. Testing -- counseling -- informed consent -- penalty. (1) An HIV-related test may be ordered only by a health care provider and only after receiving the informed consent of:

(a) the subject of the test;

(b) the subject's legal guardian;

(c) the subject's next of kin or significant other if:

(i) the subject is unconscious or otherwise mentally incapacitated;

(ii) there is no legal guardian;

(iii) there are medical indications of an HIV-related condition; and

(iv) the test is advisable in order to determine the proper course of treatment of the subject; or

(d) the subject's next of kin or significant other or the person, if any, designated by the subject in hospital records to act on the subject's behalf if:

(i) the subject is in a hospital; and

(ii) the circumstances in subsections (1)(c)(I) through (1)(c)(iv) exist.

(2) When a health care provider orders an HIV-related test, the provider also certifies that informed consent has been received prior to ordering an HIV-related test.

(3) Before the subject of the test gives informed consent, the health care provider ordering the test or the provider's designee shall give pretest counseling to:

(a) the subject;

(b) the subject's legal guardian;

(c) the subject's next of kin or significant other if:

(i) the subject is unconscious or otherwise mentally incapacitated; and

(ii) there is no guardian; or

(d) the subject's next of kin or significant other or the person, if any, designated by the subject in hospital records to act on the subject's behalf if:

(i) the subject is in the hospital; and

(ii) the circumstances in subsections (1)(c)(I) and (1)(c)(ii) exist.

(4) A health care provider who does not provide HIV-related tests on an anonymous basis shall inform each person who wishes to be tested that anonymous testing is available at one of the counseling-testing sites established by the department, or elsewhere.

(5) The subject of an HIV-related test or any of the subject's representatives authorized by subsection (1) to act in the subject's stead shall designate, after giving informed consent, a health care provider to receive the results of an HIV-related test. The designated health care provider shall inform the subject or the subject's representative of the results in person.

(6) At the time that the subject of a test or the subject's representative is given the test results, the health care provider or the provider's designee shall give the subject or the subject's representative posttest counseling.

(7) If a test is performed as part of an application for insurance, the insurance company shall obtain the informed consent in writing and ensure that:

(a) negative results can be obtained by the subject or the subject's representative upon request; and

(b) positive results are returned to the health care provider designated by the subject or the subject's representative.

(8) A minor may consent or refuse to consent to be the subject of an HIV-related test, pursuant to 41-1-402.

(9) Subsections (1) through (6) do not apply to:

(a) the performance of an HIV-related test by a health care provider or health care facility that procures, processes, distributes, or uses a human body part donated for a purpose specified under Title 72, chapter 17, if the test is necessary to assure medical acceptability of the gift for the purposes intended;

(b) the performance of an HIV-related test 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;

(C) the performance of an HIV-related test when:

(i) the subject of the test is unconscious or otherwise mentally incapacitated;

(ii) there are medical indications of an HIV-related condition;

(iii) the test is advisable in order to determine the proper course of treatment of the subject; and

(iv) none of the individuals listed in subsection (1)(b), (1)(c), or (1)(d) exists or is available within a reasonable time after the test is determined to be advisable; or

(d) the performance of an HIV-related test conducted pursuant to 50-18-107 or 50-18-108, with the exception that the pretest and posttest counseling must still be given.

(10) (a) If an agent or employee of a health care facility, a health care provider with privileges at the health care facility, or a person providing emergency services who is described in 50-16-702 has been voluntarily or involuntarily exposed to a patient in a manner that may allow infection by HIV by a mode of transmission recognized by the centers for disease control of the United States public health service, the physician of the patient shall,upon request of the exposed person, notify the patient of the exposure and seek informed consent in accordance with guidelines of the centers for disease control for an HIV-related test of the patient. If informed consent cannot be obtained, the health care facility, in accordance with the infectious disease exposure guidelines of the health care facility, may, without the consent of the patient, conduct the test on previously drawn blood or previously collected bodily fluids to determine if the patient is in fact infected. A health care facility is not required to perform a test authorized in this subsection. If a test is conducted pursuant to this subsection, the health care facility shall inform the patient of the results and provide the patient with posttest counseling. The patient may not be charged for a test performed pursuant to this subsection. The results of a test performed pursuant to this subsection may not be made part of the patient's record and are subject to 50-16-1009(1).

(b) For the purposes of this subsection (10), "informed consent" means an agreement that is freely executed, either orally or in writing, by the subject of an HIV-related test, by the subject's legal guardian, or, if there is no legal guardian and the subject is incapacitated, by the subject's next of kin, significant other, or a person designated by the subject in hospital records to act on the subject's behalf.

(11) A knowing or purposeful violation of this section is a misdemeanor punishable by a fine of $1,000 or imprisonment for up to 6 months, or both.

History: En. Sec. 4, Ch. 614, L. 1989; amd. Sec. 2, Ch. 544, L. 1991; amd. Sec. 6, Ch. 476, L. 1993; amd. Sec. 3, Ch. 524, L. 1997.

Compiler's Comments:

1997 Amendment: Chapter 524 in (1), in introductory clause after "receiving the", deleted "written"; in (3), in introductory clause after "test", substituted "gives informed consent" for "executes an informed consent agreement"; in (5), near middle after "designate", substituted "after giving" for "as part of a written"; in (7), in introductory clause after "company", substituted "shall obtain the informed consent in writing and" for "must"; in (10)(a), near end of first sentence and at beginning of second sentence before "informed", deleted "written"; in (10)(b), near beginning before "informed", deleted "written", after "agreement" deleted "in writing", and after "executed" inserted "either orally or in writing"; and made minor changes in style.

1993 Amendment: Chapter 476 in (10)(a) deleted reference to subsection (1) of 50-16-702; and made minor changes in style.

1991 Amendment: At beginning of (1) substituted "An HIV-related test may be ordered only by a health care provider and only after" for "A person may not request an HIV-related test without first"; inserted (1)(c) concerning consent of next of kin or significant other; inserted (1)(d) concerning consent of next of kin, significant other, or the designated person; in (2) substituted present text concerning certifying informed consent for "A health care provider shall certify in writing that informed consent has been received prior to requesting testing. Testing may only be requested by a health care provider"; in (3), at end, inserted "the health care provider ordering the test or his designee must give pretest counseling to"; inserted (3)(a) requiring counseling for the subject of the test; inserted (3)(c) requiring counseling for the subject's next of kin or significant other; inserted (3)(d) requiring counseling for the subject's next of kin, significant other, or the designated person; in (4), at end, inserted "or elsewhere"; in (5), at beginning, substituted "The subject of an HIV-related test or any of the subject's representatives authorized by subsection (1) to act in the subject's stead shall designate, as part of his written informed consent, a health care provider to receive the results of an HIV-related test. The designated health care provider" for "The results of anHIV-related test must be given to the health care provider designated by the subject, who" and in second sentence, after "subject", inserted "or the subject's representative"; in (6), in two places, inserted "or the subject's representative" and after "test results" inserted "the health care provider or the provider's designee"; inserted (7) concerning a test performed as part of an insurance application; in (9) changed subsection reference; inserted (9)(c) concerning performance of test under certain conditions; inserted (10)(a) concerning exposure of certain persons to potential HIV infection; inserted (10)(b) defining informed written consent; and made minor changes in style. Amendment effective July 1, 1991.

Severability: Section 8, Ch. 544, L. 1991, was a severability clause.

50-16-1008. Testing of donors of organs, tissues, and semen required -- penalty. (1) Prior to donation of an organ, semen, or tissues, HIV-related testing of a prospective donor, in accordance with nationally accepted standards adopted by the department by rule, is required unless the transplantation of an indispensable organ is necessary to save a patient's life and there is not sufficient time to perform an HIV-related test.

(2) A knowing or purposeful violation of this section is a misdemeanor punishable by a fine of up to $1,000 or imprisonment of up to 6 months, or both.

History: En. Sec. 5, Ch. 614, L. 1989; amd. Sec. 3, Ch. 544, L. 1991.

Compiler's Comments:

1991 Amendment: Near middle of (1), after "donor", inserted "in accordance with nationally accepted standards adopted by the department by rule"; and made minor change in style. Amendment effective July 1, 1991.

1991 Statement of Intent: The statement of intent attached to Ch. 544, L. 1991, provided: "A statement of intent is required for this bill because [section 3] [50-16-1008] gives authority to the department of health and environmental sciences [now department of public health and human services] to adopt rules setting standards that must be met before donation of an organ, semen, or tissues in order to prevent transmission of the virus causing acquired immune deficiency syndrome (AIDS). It is intended that the department adopt nationally accepted standards that are developed for each type of donation and that are apparently most effective in preventing transmission of the virus."

Severability: Section 8, Ch. 544, L. 1991, was a severability clause.

Cross References:

Uniform Anatomical Gift Act, Title 72, ch. 17.

50-16-1009. Confidentiality of records -- notification of contacts -- penalty for unlawful disclosure. (1) Except as provided in subsection (2), a person may not disclose or be compelled to disclose the identity of a subject of an HIV-related test or the results of a test in a manner that permits identification of the subject of the test, except to the extent allowed under the Uniform Health Care Information Act, Title 50, chapter 16, part 5.

(2) A local board, local health officer, or the department may disclose the identity of the subject of an HIV-related test or the test results only to the extent allowed by the Government Health Care Information Act, Title 50, chapter 16, part 6, unless it is in possession of that information because a health care provider employed by it provided health care to the subject, in which case the Uniform Health Care Information Act governs the release of that information.

(3) If a health care provider informs the subject of an HIV-related test that the results arepositive, the provider shall encourage the subject to notify persons who are potential contacts. If the subject is unable or unwilling to notify all contacts, the health care provider may ask the subject to disclose voluntarily the identities of the contacts and to authorize notification of those contacts by a health care provider. A notification may state only that the contact may have been exposed to HIV and may not include the time or place of possible exposure or the identity of the subject of the test.

(4) A person who discloses or compels another to disclose confidential health care information in violation of this section is guilty of a misdemeanor punishable by a fine of $1,000 or imprisonment for 1 year, or both.

History: En. Sec. 6, Ch. 614, L. 1989; amd. Sec. 4, Ch. 544, L. 1991.

Compiler's Comments:

1991 Amendment: At beginning of (1) inserted exception clause; inserted (2) concerning disclosure of subject of test; in (3), at end of first sentence, substituted "who are potential contacts" for "with whom there has been a contact capable of spreading HIV"; and inserted (4) providing penalty for unauthorized disclosure. Amendment effective July 1, 1991.

Severability: Section 8, Ch. 544, L. 1991, was a severability clause.

Attorney General Opinions:

Conditions for Release of Information About HIV Test Subject -- Imminent Danger to Health or Safety: In reconciling the apparent conflict in the provision of medical information as contained in the Uniform Health Care Information Act and the AIDS Prevention Act, the Attorney General determined that a health care provider may release health care information about the subject of an HIV-related test, including the identity of the subject, to a contact, as defined in 50-16-1003 without the subject's authorization, only when the health care provider reasonably believes that disclosure will avoid or minimize an imminent danger to the health or safety of the contact or other individual. 44 A.G. Op. 37 (1992).

50-16-1010 through 50-16-1012 reserved.

50-16-1013. Civil remedy. (1) A person aggrieved by a violation of this part has a right of action in the district court and may recover for each violation:

(a) against a person who negligently violates a provision of this part, damages of $5,000 or actual damages, whichever is greater;

(b) against a person who intentionally or recklessly violates a provision of this part, damages of $20,000 or actual damages, whichever is greater;

© reasonable attorney fees; and

(d) other appropriate relief, including injunctive relief.

(2) An action under this section must be commenced within 3 years after the cause of action accrues.

(3) The department may maintain a civil action to enforce this part in which the court may order any relief permitted under subsection (1).

(4) Nothing in this section limits the rights of a subject of an HIV-related test to recover damages or other relief under any other applicable law or cause of action.

(5) Nothing in this part may be construed to impose civil liability or criminal sanctions for disclosure of an HIV-related test result in accordance with any reporting requirement for a diagnosed case of AIDS or an HIV-related condition by the department or the centers for disease control of the United States public health service.

History: En. Sec. 7, Ch. 614, L. 1989; amd. Sec. 5, Ch. 544, L. 1991.

Compiler's Comments:

1991 Amendment: In (1)(a) increased damages from $1,000 to $5,000; and in (1)(b) increased damages from $5,000 to $20,000. Amendment effective July 1, 1991.

Severability: Section 8, Ch. 544, L. 1991, was a severability clause.

Cross References:

Statutes of limitations, Title 27, ch. 2.

Injunctions, Title 27, ch. 19.

 

Contact information

HIV/STD Section
(406) 444-3565

Page last updated 01/11/2012