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1 | AN ACT concerning public health.
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2 | WHEREAS, The human immunodeficiency virus (HIV) and | ||||||
3 | acquired immunodeficiency syndrome (AIDS) are leading causes | ||||||
4 | of illness and death; and | ||||||
5 | WHEREAS, Effective September 2006, the U.S. Centers for | ||||||
6 | Disease Control and Prevention (CDC) revised its | ||||||
7 | recommendations for HIV testing due to the changing | ||||||
8 | demographics of the persons who have become infected since the | ||||||
9 | 1980's, which include increasing proportions of persons less | ||||||
10 | than 20 years of age, women, members of racial and ethnic | ||||||
11 | minority populations, persons who reside outside metropolitan | ||||||
12 | areas, and heterosexual men and women who frequently are | ||||||
13 | unaware that they are at risk for HIV; and | ||||||
14 | WHEREAS, The CDC reports that prevention strategies that | ||||||
15 | incorporate universal HIV screening have been highly effective | ||||||
16 | and recommends screening for HIV infection for all persons 13 | ||||||
17 | to 64 years of age; and | ||||||
18 | WHEREAS, It is declared to be the public policy of this | ||||||
19 | State that HIV screening be conducted in accordance with the | ||||||
20 | recommendations of the CDC and that the Department of Public | ||||||
21 | Health shall develop and administer compliant policies and | ||||||
22 | procedures for health care providers subject to State | ||||||
23 | regulation, as well as related public health information and |
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1 | education programs; therefore | ||||||
2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The AIDS Confidentiality Act is amended by | ||||||
5 | changing Sections 2, 3, 4, 5, 6, 7, 8, 11, 13, 15, and 16 and by | ||||||
6 | adding Section 9.5 as follows:
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7 | (410 ILCS 305/2) (from Ch. 111 1/2, par. 7302)
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8 | Sec. 2. The General Assembly finds that:
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9 | (1) The use of tests designed to reveal a condition | ||||||
10 | indicative of Human
Immunodeficiency Virus (HIV) infection can | ||||||
11 | be a valuable
tool in protecting
the public health.
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12 | (2) Despite existing laws, regulations and professional | ||||||
13 | standards which
require or promote the informed, voluntary and | ||||||
14 | confidential use of tests
designed to reveal HIV infection, | ||||||
15 | many members of the public are deterred
from seeking such | ||||||
16 | testing because they misunderstand the nature of the test
or | ||||||
17 | fear that test results will be disclosed without their consent.
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18 | (3) The public health will be served by facilitating | ||||||
19 | informed,
voluntary and confidential use of tests designed to | ||||||
20 | reveal HIV infection.
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21 | (4) The public health will also be served by expanding the | ||||||
22 | availability of informed, voluntary, and confidential HIV | ||||||
23 | testing and making HIV testing a routine part of general |
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1 | medical care, as recommended by the United States Centers for | ||||||
2 | Disease Control and Prevention.
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3 | (Source: P.A. 85-677; 85-679.)
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4 | (410 ILCS 305/3) (from Ch. 111 1/2, par. 7303)
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5 | Sec. 3. When used in this Act:
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6 | (a) "Department" means the Illinois Department of Public | ||||||
7 | Health.
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8 | (b) "AIDS" means acquired immunodeficiency syndrome.
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9 | (c) "HIV" means the Human Immunodeficiency Virus or
any | ||||||
10 | other identified causative agent of AIDS.
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11 | (d) " Informed
Written informed consent" means a written or | ||||||
12 | verbal
an
agreement in writing executed by the subject of a | ||||||
13 | test or the subject's
legally authorized representative | ||||||
14 | without undue inducement or any element
of force, fraud, | ||||||
15 | deceit, duress or other form of constraint or coercion,
which | ||||||
16 | entails at least the following pre-test information :
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17 | (1) a fair explanation of the test, including its purpose, | ||||||
18 | potential
uses, limitations and the meaning of its results; and
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19 | (2) a fair explanation of the procedures to be followed, | ||||||
20 | including the
voluntary nature of the test, the right to | ||||||
21 | withdraw consent to the testing
process at any time, the right | ||||||
22 | to anonymity to the extent provided by law
with respect to | ||||||
23 | participation in the test and disclosure of test results,
and | ||||||
24 | the right to confidential treatment of
information identifying | ||||||
25 | the subject of the test and the results of the
test, to the |
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1 | extent provided by law.
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2 | Pre-test information may be provided in writing, verbally, | ||||||
3 | or by video, electronic, or other means. The subject must be | ||||||
4 | offered an opportunity to ask questions about the HIV test and | ||||||
5 | decline testing. Nothing in this Act shall prohibit a health | ||||||
6 | care provider from combining a form used to obtain informed | ||||||
7 | consent for HIV testing with forms used to obtain written | ||||||
8 | consent for general medical care or any other medical test or | ||||||
9 | procedure provided that the forms make it clear that the | ||||||
10 | subject may consent to general medical care, tests, or medical | ||||||
11 | procedures without being required to consent to HIV testing and | ||||||
12 | clearly explain how the subject may opt-out of HIV testing.
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13 | (e) "Health facility" means a hospital, nursing home, blood | ||||||
14 | bank, blood
center, sperm bank, or other health care | ||||||
15 | institution, including any "health
facility" as that term is | ||||||
16 | defined in the Illinois Finance Authority
Act.
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17 | (f) "Health care provider" means any health care | ||||||
18 | professional, nurse,
paramedic,
psychologist or other person | ||||||
19 | providing medical, nursing, psychological, or
other health | ||||||
20 | care services of any kind.
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21 | (f-5) "Health care professional" means (i) a licensed | ||||||
22 | physician, (ii) a
physician assistant
to whom the physician | ||||||
23 | assistant's supervising physician has delegated the
provision | ||||||
24 | of AIDS and
HIV-related health services, (iii) an advanced | ||||||
25 | practice registered nurse who
has a written
collaborative | ||||||
26 | agreement with a collaborating physician which authorizes the
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1 | provision of AIDS
and HIV-related health services, (iv) a | ||||||
2 | licensed dentist, (v) a licensed
podiatrist, or (vi) an
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3 | individual certified to provide HIV testing and counseling by a | ||||||
4 | state or local
public health
department.
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5 | (g) "Test" or "HIV test" means a test to determine the | ||||||
6 | presence of the
antibody or antigen to HIV, or of HIV | ||||||
7 | infection.
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8 | (h) "Person" includes any natural person, partnership, | ||||||
9 | association,
joint venture, trust, governmental entity, public | ||||||
10 | or private corporation,
health facility or other legal entity.
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11 | (Source: P.A. 93-205, eff. 1-1-04; 93-482, eff. 8-8-03; revised | ||||||
12 | 9-12-03.)
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13 | (410 ILCS 305/4) (from Ch. 111 1/2, par. 7304)
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14 | Sec. 4. No person may order an HIV test without first | ||||||
15 | receiving
the documented
written informed consent
of the | ||||||
16 | subject of the test or the subject's legally authorized
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17 | representative. A health care facility or provider may offer | ||||||
18 | opt-out HIV testing where the subject or the subject's legally | ||||||
19 | authorized representative is informed that the subject will be | ||||||
20 | tested for HIV unless he or she refuses. The health care | ||||||
21 | facility or provider must document the provision of informed | ||||||
22 | consent, including pre-test information, and whether the | ||||||
23 | subject or the subject's legally authorized representative | ||||||
24 | declined the offer of HIV testing.
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25 | (Source: P.A. 85-1248.)
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1 | (410 ILCS 305/5) (from Ch. 111 1/2, par. 7305)
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2 | Sec. 5. No health care professional may order an HIV test
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3 | without
making available to
the person tested pre-test
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4 | information about
the meaning
of the test results, the | ||||||
5 | availability of additional or confirmatory
testing, if | ||||||
6 | appropriate, and the availability of referrals for further
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7 | information or counseling.
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8 | (Source: P.A. 93-482, eff. 8-8-03.)
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9 | (410 ILCS 305/6) (from Ch. 111 1/2, par. 7306)
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10 | Sec. 6. Any individual seeking an HIV test shall have the | ||||||
11 | right to anonymous testing, unless identification of the test | ||||||
12 | subject is otherwise required. Anonymous testing shall be | ||||||
13 | performed after pre-test information is provided and informed | ||||||
14 | consent is obtained, using a coded system that does not link | ||||||
15 | individual identity with the request or result. A health care | ||||||
16 | facility or health care provider that does not provide | ||||||
17 | anonymous testing shall refer an individual requesting an | ||||||
18 | anonymous test to a site where it is available.
A subject of a | ||||||
19 | test
who wishes to remain anonymous shall have the right to do | ||||||
20 | so, and
to provide written informed consent by using a coded | ||||||
21 | system
that does not link individual identity with the request | ||||||
22 | or result,
except when written informed consent is not required | ||||||
23 | by law.
The Department may, if it deems necessary,
promulgate | ||||||
24 | regulations exempting blood banks, as defined in
the Illinois |
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1 | Blood Bank Act, from the
requirements of this Section.
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2 | (Source: P.A. 85-1248; 85-1399; 85-1440.)
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3 | (410 ILCS 305/7) (from Ch. 111 1/2, par. 7307) | ||||||
4 | Sec. 7. (a) Notwithstanding the provisions of Sections 4, 5
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5 | and 6 of this Act, written informed consent is not required for | ||||||
6 | a health
care provider or health facility to perform a test | ||||||
7 | when the health care
provider or health facility procures, | ||||||
8 | processes, distributes or uses a
human body part donated for a | ||||||
9 | purpose specified under the Illinois
Anatomical Gift Act, or | ||||||
10 | semen provided prior to the effective date of this
Act for the | ||||||
11 | purpose of artificial insemination, and such a test is
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12 | necessary to assure medical acceptability of such gift or semen | ||||||
13 | for the
purposes intended.
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14 | (b) Informed
Written informed consent is not required for a | ||||||
15 | health care
provider or health facility to perform a test when | ||||||
16 | a health care provider
or employee of a health facility, or a | ||||||
17 | firefighter or an EMT-A, EMT-I or EMT-P,
is involved in an | ||||||
18 | accidental direct skin or mucous membrane contact with
the | ||||||
19 | blood or bodily fluids of an individual which is of a nature | ||||||
20 | that may
transmit HIV, as determined by a physician in his | ||||||
21 | medical judgment. Should
such test prove to be positive, the | ||||||
22 | patient and the health care provider,
health facility employee, | ||||||
23 | firefighter, EMT-A, EMT-I, or EMT-P shall be
provided | ||||||
24 | appropriate counseling consistent with this Act.
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25 | (c) Informed
Written informed consent is not required for a |
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1 | health care
provider or health facility to perform a test when | ||||||
2 | a law enforcement
officer is involved in the line of duty in a | ||||||
3 | direct skin or mucous membrane
contact with the blood or bodily | ||||||
4 | fluids of an individual which is of a
nature that may transmit | ||||||
5 | HIV, as determined by a physician in his medical
judgment. | ||||||
6 | Should such test prove to be positive, the patient shall be
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7 | provided appropriate counseling consistent with this Act. For | ||||||
8 | purposes of
this subsection (c), "law enforcement officer" | ||||||
9 | means any person employed by
the State, a county or a | ||||||
10 | municipality as a policeman, peace officer,
auxiliary | ||||||
11 | policeman, correctional officer or in some like position
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12 | involving the enforcement of the law and protection of the | ||||||
13 | public interest
at the risk of that person's life.
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14 | (Source: P.A. 93-794, eff. 7-22-04.)
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15 | (410 ILCS 305/8) (from Ch. 111 1/2, par. 7308)
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16 | Sec. 8. Notwithstanding the provisions of Sections 4 and 5 | ||||||
17 | of this Act,
written informed consent , and pre-test
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18 | information and counseling are not required for the
performance | ||||||
19 | of an HIV test: (a)
for the purpose of research, if the testing | ||||||
20 | is performed in such a way that
the identity of the test | ||||||
21 | subject is not known and may not be retrieved by
the | ||||||
22 | researcher, and in such a way that the test subject is not | ||||||
23 | informed of
the results of the testing, or (b) when in the | ||||||
24 | judgment of the physician,
such testing is medically indicated | ||||||
25 | to provide appropriate diagnosis and
treatment to the subject |
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1 | of the test, provided that the subject of the test
has | ||||||
2 | otherwise provided his or her consent to such physician for | ||||||
3 | medical treatment.
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4 | (Source: P.A. 85-1399.)
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5 | (410 ILCS 305/9.5 new) | ||||||
6 | Sec. 9.5. Delivery of test results. | ||||||
7 | (a) The Department shall develop rules regarding the | ||||||
8 | delivery of HIV test results to patients. | ||||||
9 | (b) The subject of the test or the subject's legally | ||||||
10 | authorized representative shall be notified by personal | ||||||
11 | contact whenever possible of the confirmed positive result of | ||||||
12 | an HIV test. When the subject or the subject's legally | ||||||
13 | authorized representative is notified of a confirmed positive | ||||||
14 | test result, the health care provider or professional shall | ||||||
15 | provide the subject or the subject's legally authorized | ||||||
16 | representative with a referral to counseling in connection with | ||||||
17 | the confirmed positive test result and a referral to an | ||||||
18 | appropriate medical facility for the treatment and management | ||||||
19 | of HIV. | ||||||
20 | (c) A health care provider shall not be in violation of | ||||||
21 | this Section when an attempt to contact the test subject or the | ||||||
22 | subject's legally authorized representative at the address or | ||||||
23 | telephone number provided by the test subject or the test | ||||||
24 | subject's legally authorized representative does not result in | ||||||
25 | contact and notification or where an attempt to deliver results |
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1 | by personal contact has not been successful.
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2 | (410 ILCS 305/11) (from Ch. 111 1/2, par. 7311)
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3 | Sec. 11. Notwithstanding the provisions of Section 4 of | ||||||
4 | this Act,
written informed consent is not required for the | ||||||
5 | performance of an HIV test
upon a person who is specifically | ||||||
6 | required by law to be so tested.
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7 | (Source: P.A. 85-677; 85-679.)
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8 | (410 ILCS 305/13) (from Ch. 111 1/2, par. 7313)
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9 | Sec. 13. Any person aggrieved by a violation of this Act or | ||||||
10 | of a
regulation promulgated hereunder shall have a right of | ||||||
11 | action in the
circuit court and may recover for each violation:
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12 | (1) Against any person who negligently violates a provision | ||||||
13 | of this Act
or the regulations promulgated hereunder, | ||||||
14 | liquidated damages of $2,000
$1000 or
actual damages, whichever | ||||||
15 | is greater.
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16 | (2) Against any person who intentionally or recklessly | ||||||
17 | violates a
provision of this Act or the regulations promulgated | ||||||
18 | hereunder, liquidated
damages of $10,000
$5000 or actual | ||||||
19 | damages, whichever is greater.
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20 | (3) Reasonable attorney fees.
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21 | (4) Such other relief, including an injunction, as the | ||||||
22 | court may deem appropriate.
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23 | (Source: P.A. 85-677; 85-679.)
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1 | (410 ILCS 305/15) (from Ch. 111 1/2, par. 7315)
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2 | Sec. 15. Nothing in this Act shall be construed to impose | ||||||
3 | civil
liability or criminal sanction for disclosure of a test
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4 | result in accordance with any reporting requirement of the | ||||||
5 | Department for a
diagnosed case of HIV infection, AIDS or a | ||||||
6 | related condition.
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7 | Nothing in this Act shall be construed to impose civil | ||||||
8 | liability or
criminal sanction for performing a test without | ||||||
9 | written informed consent
pursuant to the provisions of | ||||||
10 | subsection (b) or (c) of Section 7 of this Act.
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11 | (Source: P.A. 86-887.)
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12 | (410 ILCS 305/16) (from Ch. 111 1/2, par. 7316)
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13 | Sec. 16. The Department shall promulgate rules and | ||||||
14 | regulations
concerning implementation and enforcement of this | ||||||
15 | Act. The rules and
regulations promulgated by the Department | ||||||
16 | pursuant to this Act may include
procedures for taking | ||||||
17 | appropriate action with regard to health care
facilities or | ||||||
18 | health care providers which violate this Act or the
regulations | ||||||
19 | promulgated hereunder. The provisions of The Illinois
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20 | Administrative Procedure Act shall apply to all administrative | ||||||
21 | rules and
procedures of the Department pursuant to this Act, | ||||||
22 | except that in case of
conflict between The Illinois | ||||||
23 | Administrative Procedure Act and this Act,
the provisions of | ||||||
24 | this Act shall control. The Department shall conduct training, | ||||||
25 | technical assistance, and outreach activities, as needed, to |
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1 | implement routine HIV testing in healthcare medical settings.
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2 | (Source: P.A. 85-677; 85-679.)
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