Comprehensive Overview of HIV/AIDS:
State of Kentucky Mandatory Training

Legal Aspects of HIV/AIDS: Testing, Counseling and Confidentiality


HIV antibody testing has been available since 1985. An estimated one-fourth of the approximately 1 million persons in this country who are living with HIV do not know they are infected (CDC, 2006). That's approximately 250,000 persons who could be spreading HIV to their partners unknowingly. This unwitting spread of HIV infection is part of the reason why the Center for Disease Control and Prevention (CDC) issued new guidelines in September, 2006 regarding HIV testing. The Revised Recommendations for HIV Testing of Adults, Adolescents, and Pregnant Women in Healthcare Settings (CDC, 2006) aim to make HIV testing a routine part of medical care in addition to expanding the gains made in diagnosing HIV infection among pregnant women. The goal is to make HIV testing may be a routine part of healthcare with yearly testing integrated into physicals similar to other tests used for screening such as cholesterol, Prosthetic Specific Antigen (PSA), and stools for occult blood. As HIV screening becomes a more routine aspect of medical care, more people will know they are infected with HIV and hopefully will utilize prevention measures.

Key differences in the revised Recommendations for patients in all healthcare settings are (CDC, 2006e; Branson, et al., 2006):

  • HIV testing for patients, aged 13-64, in all healthcare settings after the patient is notified that testing will be performed unless the patient declines (opt-out screening).
  • All patients initiating treatment for TB should be screened routinely for HIV infection.
  • All patients seeking treatment for STDs, including all patients attending STD clinics, should be screened routinely for HIV during each visit for a new complaint, regardless of whether the patient is known or suspected to have specific behavior risks for HIV infection.
  • HIV testing of people at high risk for HIV infection at least once a year.
  • Screening should be incorporated into the general consent for medical care; separate written consent is not recommended.
  • Prevention counseling should not be required with HIV diagnostic testing or as part of HIV screening programs in healthcare settings.

Additional key differences in the Recommendations for pregnant women in healthcare settings are (CDC, 2006):

  • Including HIV screening in the routine panel of prenatal screening tests for all pregnant women, unless the patient declines (opt-out screening).
  • Repeat screening in the third trimester in certain jurisdictions with elevated rates of HIV infection among pregnant women.

The Recommendations emphasize the importance of voluntary testing. Some may have concerns that eliminating the recommendation for separate informed consent for an HIV test could result in some patients being tested for HIV without their knowledge. Others have asserted that requiring separate, written informed consent is a barrier that makes HIV screening difficult to conduct in healthcare settings, and that removing this requirement would make widespread HIV screening feasible (CDC, 2006).

Concerns have also been expressed over the lack of HIV prevention counseling in conjunction with HIV testing. The new recommendation from the CDC continue to support prevention counseling as an intervention to help people reduce their risks for HIV, but recognize it can become a barrier to HIV testing in busy healthcare settings. CDC still recommends that patients receive information about HIV testing, HIV infection, and the meaning of test results (CDC, 2006).

The Recommendations are intended for healthcare providers in both the public and private sectors. These include healthcare workers in hospital emergency departments, inpatient services (including labor and delivery), correctional health care facilities, clinics including substance abuse treatment, public health, community, pediatric and adolescent, prenatal, and mental health, and other primary care settings (CDC, 2006).

These Recommendations address HIV testing in healthcare settings only. They do not change existing CDC recommendations on HIV counseling, testing, and referral for persons at high risk for HIV who receive testing in nonclinical settings such as at community-based organizations (CDC, 2006).

More detailed information about the revised Recommendations can be obtained at

Informed Consent for HIV Testing in the Commonwealth of Kentucky

Testing for HIV infection can be a valuable tool in protecting the public health. However misunderstanding of the nature of the test or fear of test results or denial of one's own risk, keeps people from being tested.

In the Commonwealth of Kentucky, per KRS.214.625, a person who has signed a general consent form for the performance of medical procedures and tests is not required to also sign a specific consent form relating to medical procedures or tests to determine HIV infection or antibodies. The general consent form must instruct the patient that, as part of the medical procedures or tests, the patient may be tested for HIV, hepatitis, or any other blood-borne infectious disease.

The physician who orders the test or the attending physician, is responsible for informing the patient of the results of the test if the test results are positive for human immunodeficiency virus infection. If the tests are positive, the physician shall also be responsible for either:

(a) Providing information and counseling to the patient concerning his infection or diagnosis and the known medical implications of such status or condition; or

(b) Referring the patient to another appropriate professional or healthcare facility for the information and counseling.

In any emergency situation where informed consent of the patient cannot reasonably be obtained before providing healthcare services, there is no requirement that a healthcare provider obtain a previous informed consent.

No person in Kentucky can perform a test designed to identify HIV or its antigen or antibody, without first obtaining the informed consent of the person upon whom the test is being performed.

Kentucky law requires that each public health department provides a program of counseling and testing for HIV on either an anonymous or confidential basis.

The Cabinet for Health and Family Services established a network of voluntary HIV testing programs in public health departments in every county in the state. Each public health department has the ability to provide counseling and testing for HIV to each patient who receives services and to offer the testing on a voluntary basis to each patient who requests the test.

A confidential HIV test means the patient gives their real name, and the results of a test are known only to themselves and the healthcare provider or counselor who provides test results, medical care or prevention services to that person. In the event of a positive HIV test, those who have confidential testing must be reported by name and other specific information by law.

An anonymous HIV antibody test means that the person who orders or performs the test does not maintain a record of the name of the person they are testing. Only the statistical information relating to a positive test for HIV is reported to the cabinet.

See Appendix A for a listing of HIV services in the state of Kentucky, including locations for HIV testing.

HIV Counseling with HIV Testing

HIV test counseling should be offered to all clients who are at risk for HIV or who request counseling. At the same time, the law states that persons who refuse counseling should not be denied an HIV test (clients can refuse counseling); and that the person conducting the HIV test does not have to provide the counseling themselves. They can refer the client to another person or agency for counseling.

Pre-test Counseling

HIV pre-test counseling should be based on the CDC's Revised Guidelines for HIV Counseling, Testing and Referral Recommendations (accessed at http://www/; and should:

  • Assist the individual to set realistic behavior-change goals and establish strategies for reducing their risk of acquiring or transmitting HIV;
  • Provide appropriate risk reduction skill-building opportunities to support their behavior change goals; and
  • Provide or refer for other appropriate prevention, support or medical services.

Post-test Counseling

Everyone who tests negative should be offered an individual counseling session at the time they receive their test results. This counseling can be provided by the person providing the results or can be a referral for the client to receive these services at another agency. This post-test counseling should accomplish the same goals as pre-test counseling: assist the client to set behavior change goals, establish strategies to achieve these goals, provide skills-building to support achieving these goals and provide appropriate referrals.

For those clients who test positive, counseling can't just be offered. It must be provided or referred and in addition to what is provided to those with negative results, must also include:

  • If confidentially tested, the information that HIV is a reportable condition;
  • Either the provision of partner notification support or referral to public health for these services;
  • Appropriate referrals for alcohol and drug and mental health counseling, medical evaluation, TB screening, and HIV prevention and other support services.

Confidentiality of HIV Testing

According to KRS 214.625, anyone who has knowledge of a test result, or the identity of the person upon whom the test was performed is prohibited from disclosing this information except to the following:

  1. The subject of the test or the subject's legally authorized representative;
  2. Any person designated in a legally effective release of the test results executed prior to or after the test by the subject of the test or the subject's legally authorized representative;
  3. A physician, nurse, or other healthcare personnel who has a legitimate need to know the test result in order to provide for his protection and to provide for the patient's health and welfare;
  4. Healthcare providers consulting between themselves or with healthcare facilities to determine diagnosis and treatment;
  5. The Cabinet, in accordance with rules for reporting and controlling the spread of disease, as otherwise provided by state law;
  6. A health facility or healthcare provider which procures, processes, distributes, or uses: a) human body part from a deceased person, with respect to medical information regarding that person; or b) Semen provided prior to July 13, 1990, for the purpose of artificial insemination;
  7. Health facility staff committees, for the purposes of conducting program monitoring, program evaluation, or service reviews;
  8. . Authorized medical or epidemiological researchers who shall not further disclose any identifying characteristics or information;
  9. A parent, foster parent, or legal guardian of a minor; a crime victim; or a person specified in KRS 438.250;
  10. A person allowed access by a court order.

Disclosure must be accompanied by a statement in writing which includes the following or substantially similar language: "This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of such information without the specific written consent". People who perform HIV counseling and testing in public health departments or health districts must sign strict confidentiality agreements. These agreements regulate the personal information that may be revealed in counseling and testing sessions, and test results.

HIV test results are kept in locked files, with only a few appropriate staff members having access to them.

All medical records are confidential and must be maintained in a manner that protects that confidentiality. Confidentiality of medical information means that information that can be related to the specific patient may not be disclosed to ANYONE except under specific circumstances as above.

Reporting of Positive HIV Test Results

Reporting of HIV and AIDS cases assists local and state officials in tracking the epidemic. It also allows for effective planning and intervention to be provided in the effort to reduce the transmission of HIV to other people. According to 902 KAR 2:020 which addresses disease surveillance, in Kentucky, physicians and medical laboratories must report positive test results for HIV infection from:

  • ELISA;
  • Western Blot;
  • PCR;
  • HIV antigen;
  • HIV culture;
  • CD4+ assay including absolute CD4+ cell counts and CD4+%;
  • HIV detectable Viral load assay; and
  • A positive serologic test result for HIV infection.

Physicians and medical laboratories must also report a diagnosis of AIDS that meets the definitions of AIDS established by the CDC, revised in 2008, discussed previously.

How, When and Where to Report

Reports of an HIV infection or an AIDS diagnosis must be reported within five business days, whenever possible utilizing the Adult HIV/AIDS Confidential Case Report form or the Pediatric HIV/AIDS Confidential Case Report form.

Reports of an HIV infection or AIDS diagnosis must be submitted to the HIVAIDS Surveillance Program of the Louisville-Metro Health Department for any resident of the following counties:

  • Jefferson,
  • Henry,
  • Oldham,
  • Bullitt, Shelby,
  • Spencer, and
  • Trimble.

Report for residents of the remaining Kentucky counties must be submitted to the HIV/AIDS Surveillance Program of the Kentucky Department for Public Health, or as directed by the HIV/AIDS project coordinator.

Reports for persons with HIV infection, but not a diagnosis of AIDS, must include the following information:

  • The patient's full name;
  • Date of birth, using the format MMDDYY;
  • Gender;
  • Race;
  • Risk factor, as identified by CDC;
  • County of residence;
  • Name of facility submitting report;
  • Date and type of HIV test performed;
  • Results of CD4+ cell counts and CD4+%;
  • Results of viral load testing;
  • PCR, HIV culture, HIV antigen, if performed;
  • Results of TB testing, if available; and
  • HIV status of the person's partner, spouse or children.

Reports of AIDS cases shall include the information above as well as:

  • The patient's complete address;
  • Opportunistic infections diagnosed; and
  • Date of onset of illness.

Reports of AIDS must be made whether or not the patient has been previously reported as having HIV infection. If the patient has not been previously reported as having HIV infection, the AIDS report also serve as the report of HIV infection.

Spousal Notification/Partner Notification

Federal Public Law 104-146 (1996) requires that states take action to require that a "good faith effort" be made to notify all spouses of HIV-infected persons. A "spouse" is defined as anyone who is or has been the marriage partner of an HIV-infected individual within 10 years prior to the HIV diagnosis.

Notification means that spousal information will be discussed with individuals prior to their HIV test. If the test result is positive, the individual will be given the choice to notify his/her spouse(s), to allow the health care provider to notify the spouse(s) or refer to the local health jurisdiction for assistance in notifying the spouse(s). More information on spousal notification can be found in the Testing and Counseling Section, covered earlier in this course. Partner notification is a voluntary, confidential service provided to HIV-positive people and their sex and/or injection equipment-sharing partners.

Partner notification is provided using a variety of strategies to make sure exposed partners, including spouses, are notified of their exposure to HIV and receive appropriate counseling in a way that respects the confidentiality of the source patient.

People who have newly tested HIV-positive should also receive help notifying partners, including spouses. Providers must confirm those partners have been notified and/or seek agreement to refer the name of the individual to the local health officer for assistance in notifying partners.

Partner notification is a critical tool to inform partners of their exposure so that they can test for HIV. If uninfected, they can take steps to ensure that they do not become infected. If infected, they can take steps to take care of their health and ensure that they do not pass the virus on to others.

Disability and Discrimination

People with AIDS and HIV are also protected by federal law under the Americans with Disability Act (1990) and Section 504 of the Federal Rehabilitation Act of 1973, as amended.

Persons with HIV infection and/or AIDS who feel discriminated against on the basis of their disease may file a complaint with the Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services. OCR will investigate anonymous reports. HIV infection and AIDS are medical conditions that are considered disabilities under the federal Americans with Disability Act (ADA).

The law means that it is illegal to discriminate against someone who has AIDS or is HIV infected. It is also illegal to discriminate against someone who is 'believed' to have AIDS or HIV infection, even though that person is not, in fact, infected. The areas covered in the law are:

  • Employment;
  • Rental, purchase or sale of apartment, house or real estate;
  • Places of public accommodation (restaurants, theaters, etc.);
  • Healthcare, legal services, home repairs, and other personal services available to the general public;
  • Applying for a loan or credit card, or other credit transactions;
  • Certain insurance transactions.

Employers may not discriminate against persons with HIV infections or AIDS in:

  • Employment
  • Recruitment
  • Hiring
  • Transfers
  • Layoffs
  • Terminations
  • Rate of pay
  • Job assignments
  • Leaves of absence, sick leave, any other leave or fringe benefits available by virtue of employment

Employers are required to provide and maintain a working environment free of discrimination. They must assure that no harassment, intimidation or personnel distinction is made in terms and conditions of employment. If a worksite situation develops that poses the threat of discrimination, employees must be given education and supervision to end harassment, the use of slurs and/or intimidation.

Employers are responsible for providing reasonable worksite accommodations which will enable a qualified, disabled employee or job applicant to perform the essential tasks of a particular job. Reasonable accommodation means relatively inexpensive and minimal modifications, such as:

  • Providing special equipment
  • Altering the work environment
  • Allowing flex-time
  • Providing frequent rest breaks
  • Allowing the person to work at home (telecommute)
  • Restructuring the job

When a person goes for a job interview or is hired, the employer:

  • Cannot ask questions directed at the perception or presence of HIV infection or AIDS, unless based on a "bona fide" occupational qualification, which at this time, according to CDC does not exist.
  • Cannot require a blood test to determine HIV infection, unless HIV status limits the ability to perform the work, i.e. overseas assignment in country that requires HIV certification.
  • Cannot require a physical exam directed to identify HIV infection, except for exams necessary to evaluate the need for, or nature of, reasonable accommodation or specific job-related conditions.
  • Cannot ask questions about lifestyle, living arrangements, or sexual orientation.

Exceptions to this are applicants for the U.S. Military, the Peace Corps, the Job Corps, and persons applying for U.S. citizenship.

Continue on to HIV and Co-Infection