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OHIO REVISED CODE

TITLE XXXVII HEALTH - SAFETY - MORALS

CHAPTER 3701 DEPARTMENT OF HEALTH

[§ 3701.24.3] § 3701.243. Disclosure of HIV test results or diagnosis.

(A) Except as provided in this section or section 3701.248 [3701.24.8] of the Revised Code, no person or agency of state or local government that acquires the information while providing any health care service or while in the employ of a health care facility or health care provider shall disclose or compel another to disclose any of the following:

(1) The identity of any individual on whom an HIV test is performed;

(2) The results of an HIV test in a form that identifies the individual tested;

(3) The identity of any individual diagnosed as having AIDS or an AIDS-related condition.

(B) (1) Except as provided in divisions (B)(2), (C), (D), and (F) of this section, the results of an HIV test or the identity of an individual on whom an HIV test is performed or who is diagnosed as having AIDS or an AIDS-related condition may be disclosed only to the following:

(a) The individual who was tested or the individual's legal guardian, and the individual's spouse or any sexual partner;

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

(c) The individual's physician;

(d) The department of health or a health commissioner to which reports are made under section 3701.24 of the Revised Code;

(e) A health care facility or provider that procures, processes, distributes, or uses a human body part from a deceased individual, donated for a purpose specified in Chapter 2108. of the Revised Code, and that needs medical information about the deceased individual to ensure that the body part is medically acceptable for its intended purpose;

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

(g) 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 pursuant to division (E)(6) of section 3701.242 [3701.24.2] of the Revised Code, except that the identity of the individual tested shall not be revealed;

(h) To law enforcement authorities pursuant to a search warrant or a subpoena issued by or at the request of a grand jury, a prosecuting attorney, a city director of law or similar chief legal officer of a municipal corporation, or a village solicitor, in connection with a criminal investigation or prosecution.

(2) The results of an HIV test or a diagnosis of AIDS or an AIDS-related condition may be disclosed to a health care provider, or an authorized agent or employee of a health care facility or a health care provider, if the provider, agent, or employee has a medical need to know the information and is participating in the diagnosis, care, or treatment of the individual on whom the test was performed or who has been diagnosed as having AIDS or an AIDS-related condition.

This division does not impose a standard of disclosure different from the standard for disclosure of all other specific information about a patient to health care providers and facilities. Disclosure may not be requested or made solely for the purpose of identifying an individual who has a positive HIV test result or has been diagnosed as having AIDS or an AIDS-related condition in order to refuse to treat the individual. Referral of an individual to another health care provider or facility based on reasonable professional judgment does not constitute refusal to treat the individual.

(3) Not later than ninety days after November 1, 1989, each health care facility in this state shall establish a protocol to be followed by employees and individuals affiliated with the facility in making disclosures authorized by division (B)(2) of this section. A person employed by or affiliated with a health care facility who determines in accordance with the protocol established by the facility that a disclosure is authorized by division (B)(2) of this section is immune from liability to any person in a civil action for damages for injury, death, or loss to person or property resulting from the disclosure.

(C) (1) Any person or government agency may seek access to or authority to disclose the HIV test records of an individual in accordance with the following provisions:

(a) The person or government agency shall bring an action in a court of common pleas requesting disclosure of or authority to disclose the results of an HIV test of a specific individual, who shall be identified in the complaint by a pseudonym but whose name shall be communicated to the court confidentially, pursuant to a court order restricting the use of the name. The court shall provide the individual with notice and an opportunity to participate in the proceedings if the individual is not named as a party. Proceedings shall be conducted in chambers unless the individual agrees to a hearing in open court.

(b) The court may issue an order granting the plaintiff access to or authority to disclose the test results only if the court finds by clear and convincing evidence that the plaintiff has demonstrated a 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 and 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.

(c) If the court issues an order, it shall guard against unauthorized disclosure by specifying the persons who may have access to the information, the purposes for which the information shall be used, and prohibitions against future disclosure.

(2) A person or government agency that considers it necessary to disclose the results of an HIV test of a specific individual in an action in which it is a party may seek authority for the disclosure by filing an in camera motion with the court in which the action is being heard. In hearing the motion, the court shall employ procedures for confidentiality similar to those specified in division (C)(1) of this section. The court shall grant the motion only if it finds by clear and convincing evidence that a compelling need for the disclosure has been demonstrated.

(3) Except for an order issued in a criminal prosecution or an order under division (C)(1) or (2) of this section granting disclosure of the result of an HIV test of a specific individual, a court shall not compel a blood bank, hospital blood center, or blood collection facility to disclose the result of HIV tests performed on the blood of voluntary donors in a way that reveals the identity of any donor.

(4) In a civil action in which the plaintiff seeks to recover damages from an individual defendant based on an allegation that the plaintiff contracted the HIV virus as a result of actions of the defendant, the prohibitions against disclosure in this section do not bar discovery of the results of any HIV test given to the defendant or any diagnosis that the defendant suffers from AIDS or an AIDS-related condition.

(D) The results of an HIV test or the identity of an individual on whom an HIV test is performed or who is diagnosed as having AIDS or an AIDS-related condition may be disclosed to a federal, state, or local government agency, or the official representative of such an agency, for purposes of the medical assistance program established under section 5111.01 of the Revised Code, the medicare program established under Title XVIII of the "Social Security Act," 49 Stat. 620 (1935) 42 U.S.C.A. 301, as amended, or any other public assistance program.

(E) Any disclosure pursuant to this section shall be in writing and accompanied by a written statement that includes the following or substantially similar language: "This information has been disclosed to you from confidential records protected from disclosure by state law. You shall make no further disclosure of this information without the specific, written, and informed release of the individual to whom it pertains, or as otherwise permitted by state 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."

(F) An individual who knows that the individual has received a positive result on an HIV test or has been diagnosed as having AIDS or an AIDS-related condition shall disclose this information to any other person with whom the individual intends to make common use of a hypodermic needle or engage in sexual conduct as defined in section 2907.01 of the Revised Code. An individual's compliance with this division does not prohibit a prosecution of the individual for a violation of division (B) of section 2903.11 of the Revised Code.

(G) Nothing in this section prohibits the introduction of evidence concerning an HIV test of a specific individual in a criminal proceeding.

HISTORY: 143 v S 2 (Eff 11-1-89); 143 v H 677 (Eff 8-9-90); 148 v H 100. Eff 3-23-2000.



Cross-References to Related Sections

AIDS and HIV related duties of director of health, RC § 3701.24.1.

Child fatality review board access to confidential information, RC § 307.62.7.

Civil action for violation of HIV testing provisions, RC § 3701.24.4.

Confidential test defined; reports on AIDS and HIV, RC § 3701.24.

Information to be disclosed concerning deceased child, RC § 5153.17.2.

When insurer may require HIV testing of applicant, RC § 3901.46.



Ohio Rules

Search warrants, CrimR 41.

Subpoena, CivR 45.



Ohio Adminstrative Code

Reporting and recordkeeping -

Department of health -

AIDS, ARC, and HIV test reporting. OAC 3701-3-12.

Community alternative homes; recordkeeping. OAC 3701-16-14.

Confidentiality of case records from public health reports, generally. OAC 3701-1-03.

Release of medical records of patient suffering from communicable disease. OAC 3701-3-08.

Department of insurance -

AIDS model, consent to test form. OAC 3901-1-49.

Department of rehabilitation and correction -

Cooperation with health department in AIDS testing of inmates; disclosure. OAC 5120-9-58.

State medical board -

Duty of licensee to report HIV or HBV infection. OAC ch. 4731-19.

Research Aids

Reporting prevalence of diseases:

O-Jur3d: Health § 52

Am-Jur2d: Health §§ 97-100



ALR

State statutes or regulations expressly governing disclosure of fact that person has tested positive for human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS). 12 ALR5th 149.



Law Review

AIDS: dealing with the plague. Roger N. Braden. 19 NKyLRev 277 (1992).

AIDS: legal issues 1992. Stephen A. Skiver and James A. Hickey. 19 Ohio N.U.L. Rev. 839 (1993).

American Bar Association policy and report on AIDS. 21 ToledoLRev 1 (1989).

Confidentiality and privilege: the status of social workers in Ohio. Gary W. Paquin. 19 Ohio N.U.L. Rev. 199 (1992).

Testing and the health insurance industry's response to the AIDS epidemic. Comment. 18 Ohio N.U.L. Rev. 687 (1992).

CASE NOTES AND OAG








Analysis

Authority of county coroner.

Disclosure of Information.

Final order.

"Health care service," construed.

HIV, AIDS.

Orders of the court.

Run sheets.

- Public record.





Authority of county coroner


The prohibition set forth in RC § 3701.24.3 against the disclosure of the results of human immunodeficiency virus testing or the diagnosis of acquired immunodeficiency syndrome does not preclude a county coroner from including that information in an autopsy report as required by RC § 313.13 or a death certificate as required by RC § 3705.16: OAG No. 91-074 (1991).



Disclosure of Information


RC § 3701.243, authorizing disclosure of HIV/AIDS information in certain circumstances, implicitly waives the physician-patient privilege: State v. Gonzalez, 154 Ohio App. 3d 9 (2003).



Final order


An order to compel discovery in a medical malpractice action is not a final appealable order. Whether an order was entered in a special proceeding is determined not by the nature of the order, but by the nature of the action from which the order arose: Uschold v. Community Blood Ctr., 98 Ohio App. 3d 1, 647 N.E.2d 816 (1994).



"Health care service," construed


"Health care service," under RC § 3701.24, includes only diagnostic, evaluative, and treatment services, and does not include tangential items such as disability benefits: Yoder v. Ingersoll-Rand Co., 31 F. Supp. 2d 565, (N.D. Ohio 1997).



HIV, AIDS


See AIDS, HIV State v. Gonzalez, 154 Ohio App. 3d 9 (2003).



Orders of the court


Pursuant to RC § 3701.24.3, a court is not permitted to order a blood bank, hospital blood center, or blood collection facility to disclose the identity of a donor unless, upon motion, the court finds by clear and convincing evidence that a compelling need for disclosure has been demonstrated. A discovery order compelling disclosure of the name, last known address, social security number, and date of death of a voluntary donor of blood allegedly infected with the HIV virus is an order which effects a substantial right made in a special proceeding: Arnold v. Am. Natl. Red Cross, 93 Ohio App. 3d 564, 639 N.E.2d 484 (1994).



Run sheets




- Public record

Pursuant to RC § 3701.24.3(A), a county EMS organization responding to a public records request for run sheets is prohibited from disclosing "(1) the identity of any individual on whom an HIV test is performed; (2) the results of an HIV test in a form that identifies the individual tested; and (3) the identity of any individual diagnosed as having AIDS or an AIDS-related condition." Pursuant to RC §§ 3701.24.3(A) and 149.43(A)(1)(p), this information is not a public record and must be redacted from a run sheet prior to its disclosure pursuant to RC § 149.43(B): OAG No. 99-006 (1999).

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