La. Admin. Code tit. 48 § I-13503

Current through Register Vol. 50, No. 3, March 20, 2024

Section I-13503 - Consent for Testing

A. Informational Provisions. Prior to the execution of informed consent, the health care provider requesting the performance of an HIV-related test shall provide to the subject of an HIV-related test, or, if the subject lacks capacity to consent, to a person authorized by law to consent to health care for the subject, an oral, videotaped, or written explanation of the nature of AIDS and HIV-related illness, as well as oral, videotaped, or written information about behavior known to pose risks for transmission and contraction of HIV infection. The consent form developed by the Department of Health and Hospitals, Office of Public Health, contains the minimal requirements for meeting these provisions as does the informational brochure developed for this purpose. If the information is given orally to the subject it should describe at a minimum:

1. the voluntary nature of the test;

2. measures for the prevention of exposure to, and transmission of HIV, including discussion of abstinence, monogamy, safer sex using condoms, cleaning needles, or other prevention measures needed by the patient as well as partner notification;

3. the accuracy and reliability of testing for HIV;

4. the significance of the results of such testing, including the potential for developing the Acquired Immunodeficiency Syndrome;

5. encouraging the individual, as appropriate, to undergo such testing;

6. the benefits of such testing, including the medical benefits of diagnosing HIV disease in the early stages and the medical benefits of receiving early intervention services during such stages;

7. the possibility that the subject may suffer discrimination if the results of the test are disclosed inappropriately.

B. Informed Consent

1. Except as otherwise provided herein, no person shall order the performance of an HIV-related test to be performed on a person at a licensed hospital without first receiving the written informed consent of the subject of the test if the individual has capacity to consent or, when the subject lacks capacity to consent, that of the person authorized by law to consent to health care for such individual except as provided herein or authorized or required by law or regulation. Louisiana law specifically authorizes minors to consent to care for sexually transmitted diseases without parental approval. The written form developed by the Department of Health and Hospitals, Office of Public Health, has been developed to fulfill the requirements of this provision. Adherence to these rules, regulations, and forms shall constitute a legal presumption that consent for testing was validly obtained. While other forms of written consent or verbal consent can be obtained there shall be no legal presumption that consent secured through such means will be deemed valid.

2. If an HIV-related test is to be performed on a person who is an outpatient, or tested at a licensed hospital laboratory by the delivery of blood sample for testing, the person ordering such tests shall first obtain the consent of the patient and specifically so state on the order or request form furnished to the hospital or hospital laboratory, and likewise indicate the patient's choice as to the anonymity (see Subsection D below); such statement and/or certification by the person ordering the test may be relied upon by the hospital or hospital laboratory without the necessity for a copy of such consent and/or election by the patient being furnished.

3. If the HIV-related test is to be performed on a person who is an inpatient in a licensed hospital, a written consent form, duly completed and by the patient, must be in the patient's chart prior to any steps in such HIV-related testing.

C. Verbal Informed Consent. If a person is ordering an HIV-related test on a client who is in a setting other than as an inpatient in a licensed hospital, he/she has the option of either first receiving the written informed consent of the subject (or authorized person as indicated above) as in Subsection A above, or receiving the verbal informed consent of a subject contemporaneously documented in writing in the medical record. Verbal informed consent should be immediately and contemporaneously documented in writing in the medical record of the person being tested. Minimal requirements of valid verbal consent include a discussion of the topics as contained in the written consent form as summarized by the following:

1. the voluntary nature of the test;

2. measures for the prevention of exposure to, and transmission of HIV, including discussions of abstinence, monogamy, safer sex using condoms, cleaning needles, or other prevention measures needed by the patient as well as partner notification;

3. the accuracy and reliability of testing for HIV;

4. the significance of the results of such testing, including the potential for developing the Acquired Immunodeficiency Syndrome;

5. encouraging the individual, as appropriate, to undergo such testing;

6. the benefits of such testing, including the medical benefits of diagnosing HIV disease in the early stages and the medical benefits of receiving early intervention services during such stages;

7. the possibility that the subject may suffer discrimination if the results of the test are disclosed inappropriately. Both the written consent form and the informational brochure developed by the Department of Health and Hospitals, Office of Public Health, contain (independently) the necessary written information which can be provided to the person being tested. The informational brochure contains some additional information which may be useful to the person being tested but is not required to be given to the person being tested.

D. Anonymous Testing. A patient requesting the performance of an HIV-related test shall be provided an opportunity to remain anonymous by the use of a coded system with no correlation or identification of the individual's identity to the specific test request or results. A health care provided that is not able to provide this service shall refer, at no extra charge to the individual seeking anonymity, to a site which does provide anonymous testing. These anonymous provisions do not apply to inpatients in hospitals. Providers can locate sites where this testing can be done anonymously through the Louisiana AIDS Hotline at 1-800-99AIDS9 or the local parish health unit.

E. HIV Testing Not Requiring Informed Consent. Informed consent is not necessary as follows:

1. by a health care provider/facility in procuring human body parts or blood for transplantation or transfusion;

2. for accredited research such that the identity of the subject remains anonymous and cannot be retrieved by the researcher;

3. on a deceased person to determine the cause of death or for epidemiologic purposes;

4. if, in the opinion of the health care provider requesting the test, the request for consent would be medically contraindicated;

5. a child taken into custody of the Department of Social Services where department officials have cause to believe the child is infected with HIV;

6. on a child when the child's attending physician or health care provider reasonably believes such test to be necessary in order to properly diagnose or treat the childs medical condition and document such reason in the child's medical record;

7. on any person arrested, indicted, or convicted for crimes of aggravated rape, forcible rape, simple rape, or incest when required by a court to undergo an HIV related test;

8. for test performed pursuant to R.S. 40:1299(D).

La. Admin. Code tit. 48, § I-13503

Promulgated by the Department of Health and Hospitals, Office of Public Health, LR 18:183 (February 1992).

AUTHORITY NOTE: Promulgated in accordance with R.S.40:38.5.