Gov. Corbett last week signed into law a measure that will relax restrictions on HIV testing in an effort supporters say is designed to make HIV testing more routine. But some HIV/AIDS advocates, however, say the new law could undermine patients’ rights.
Late last month, the Pennsylvania House and Senate approved a final version of Sen. Edwin Erickson’s (R-26th Dist.) SB 260, which amends Act 148, the Confidentiality of HIV-Related Information Act.
Among its stipulations, the measure will lift the requirement that a patient must provide informed written consent that he or she will undergo an HIV test, replaced instead by “documented” consent.
The new law states that the healthcare provider will document the patient’s consent or refusal to participate in the testing, but does not offer further details on that procedure.
Healthcare providers will also be allowed to offer HIV testing as “opt out,” where the patient is instructed he or she will receive an HIV test unless he or she refuses.
Erickson said the new law will provide for a more “expeditious process,” a goal that has been recommended by the Centers for Disease Control, he noted.
“This procedure will prioritize identifying individuals who are unaware of their HIV status and getting them into treatment, while sustaining the fundamental voluntary nature of HIV screening,” he said.
Ronda Goldfein, executive director of the AIDS Law Project of Pennsylvania, however, said existing law had provided ample opportunity to streamline testing.
“This new law simply reinforces what has already been done but shifts away important patient protections,” she said.
Under the most recent law, patients had to sign a form agreeing to be tested for HIV, and Goldfein suggested that amending that stipulation to a “documentation” of consent is too vague of a policy.
“The consent now only has to be documented, and there’s no specificity as to how it should be documented — so is it by signing my name or by a provider checking something off in my file that he asked me if I wanted to be tested? Just because there’s a notation in a file does not mean that a patient gives consent,” she said. “So I’m fearful that with the greatly reduced proof of consent requirements, people will be tested without knowing it or agreeing to it and they’ll only find out they’ve been tested once they get their results.”
The law also stipulates that negative results no longer need to be delivered in person — a provision that Kevin Burns, executive director of ActionAIDS, said should not be problematic so long as providers are conscientious about confidentiality and don’t leave phone messages with test results.
Burns, however, shared Goldfein’s hesitation over the change to the written-consent portion of the law.
“I think it is really concerning that people possibly won’t have the opportunity to know the test is being done and won’t necessarily be able to learn what a negative result means and what a positive result means,” Burns said. “We usually use that opportunity to educate people about safer sex, so it is concerning that people might not have that opportunity.”
Goldfein noted that proponents of the new law proffered that the former written-consent provisions were too cumbersome; while that process may have been so for healthcare providers, she noted that patients largely refrain from testing because of fear of results, not because of the written-consent process.
Nurit Shein, executive director of Mazzoni Center, said her agency will continue to garner written consent for HIV tests and will evaluate the pros and cons of lifting that stipulation in the future.
Shein said she didn’t have qualms about the new law dropping the written-consent provision in a standard heathcare setting — because of HIPPA laws and doctor-patient confidentiality — but noted that it could be an issue in other environments.
“I think where we need to be concerned is in community-based HIV testing,” she said. “Each organization is going to need to decide whether it wants to be more restrictive on its own practices or not.”
In terms of the new opt-out stipulation, Shein said New Jersey has had such a measure in its HIV-testing law for some time without “enormous problems.” But she cautioned that with the new law comes the obligation for education.
“I think the main issue is really educating the public and providers as to how to present the opt-out. I think it will take time for patients to understand that when their blood is taken, an HIV test can be performed. And I’m not sure all providers are going to explain specifically to patients, ‘We’re going to do an HIV test but if you don’t want us to do it you need to tell us.’ So I think the issue is really how this is going to translate to individual providers and if they’re going to give the patients the correct information. If that is done, then it brings the choice back to the patients and that’s where it should be.”
Burns noted that on one hand, the opt-out provision is a step toward making HIV testing more routine, but the potential lack of written consent detracts from that progress.
The new provisions are set to go into effect by the end of the summer, and Goldfein suggested that patients stay informed about their own care to prevent any breaches of their rights.
“If patients are getting blood drawn, they need to be aware and ask what exactly is being tested for, and hopefully the providers will be honest and clear and say, ‘We’re testing for this level, this level, HIV.’ The proof-of-consent requirement has now been so watered down that it’s time to empower patients to talk to their providers about the tests that are being done.”
Jen Colletta can be reached at [email protected].
