States designated as having introduced legislation include 5 states (Massachusetts, Nebraska, New York, Pennsylvania, and Rhode Island) with laws incompatible as of January 2011. Washington changed its administrative code to be more compatible with the Centers for Disease Control and Prevention (CDC) recommendations and has no conflicting statutory law. New York and Rhode Island remain incompatible but have passed some legislation more compatible with the CDC recommendations. New York passed legislation on 2 subparameters of consent, allowing use of a general consent form and opt-out testing. Rhode Island passed legislation on all subparameters of consent and 1 subparameter of counseling (in-person vs discretionary notification). Delaware, Florida, and Texas were compatible in 2006 and have introduced additional legislation more explicitly consistent with the CDC recommendations for opt-out consent. Washington, DC, was compatible in 2006 but passed laws more explicitly consistent with the CDC recommendations for opt-out consent in emergency departments.
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Neff S, Goldschmidt R. Centers for Disease Control and Prevention 2006 Human Immunodeficiency Virus Testing Recommendations and State Testing Laws. JAMA. 2011;305(17):1767–1768. doi:10.1001/jama.2011.564
To the Editor: In 2006, the Centers for Disease Control and Prevention (CDC) issued recommendations for routine human immunodeficiency virus (HIV) testing in health care settings with HIV prevalence of 0.1% or greater for all persons aged 13 to 64 years, regardless of risk.1 Central elements address consent and counseling. CDC recommendations promote written or oral informed consent through an opt-out process (ie, patient is told the test will be obtained unless declined), in which general consent for medical care is sufficient for HIV testing, and advocate against mandatory prevention counseling and in-person notification of negative test results.
Although national recommendations exert influence over state laws, HIV testing laws are ultimately under state jurisdiction. At the time of these recommendations, however, many state HIV testing laws presented barriers to implementation. For state laws to be compatible with CDC recommendations, they need to either conform or, at a minimum, not conflict. To assess current compatibility of laws with CDC recommendations, we reviewed all state HIV testing laws and administrative codes related to consent and counseling.
We compared consent and counseling HIV testing laws from the Compendium of State HIV Testing Laws,2 updated January 2011, with the 2006 CDC recommendations. The compendium contains detailed profiles of HIV testing laws drawn from state statutes and administrative codes, excluding case law and policies issued by other regulatory agencies. The database is updated regularly; accuracy and validity are maintained by review and feedback. We also tracked consent and counseling legislation introduced since the recommendations' issuance. Consent and counseling laws were further evaluated by subparameters (Table).
Key terms such as opt-out and HIV-prevention counseling were interpreted as defined in the CDC recommendations. We defined specific consent as a separate HIV testing consent form distinct from the general consent for medical care; test counseling as HIV test counseling, information, or education provided verbally or with written materials or videos; and discretionary notification as delivery of results through a mode deemed appropriate by the clinician (eg, telephone, mail, electronic means, or in person). Laws and policies were considered compatible if they were not in conflict with CDC recommendations and incompatible if they would preclude implementation of CDC recommended routine testing. When laws were ambiguous or open to interpretation (14% of states), we consulted state and national experts to help resolve differences.
As of January 2011, 46 states and jurisdictions (including Washington, DC) (90.2%) were coded as compatible with the 2006 CDC recommendations for consent and counseling; 5 states were incompatible on at least 1 measured subparameter. For some states, compatibility varied by health care provider, setting, scenario, or type of law (Table). Although 21 states were already compatible in 2006 and had no legislative action since, 24 states (including Washington, DC) subsequently changed their statutes, administrative code, or both, making them more compatible (Figure). State laws remained in flux. In 2009-2010, 9 states (Connecticut, Hawaii, Michigan, Montana, New York, Ohio, Rhode Island, Washington, and Wisconsin) made their laws more compatible with CDC recommendations.
Nearly all states' HIV testing laws and administrative codes were compatible with the current CDC HIV testing recommendations1 on consent and counseling as of January 2011. Although 5 states still had incompatible laws, 24 states actively changed their laws toward compatibility with CDC recommendations. This study is limited to state HIV testing statutes and administrative code available online and does not include case law or policies issued by other regulatory agencies (eg, health departments). State HIV testing laws are often complicated; can be contradictory or subject to interpretation; and can vary across populations, settings, scenarios, or providers. When assessed for overall compatibility, however, HIV testing laws in nearly all states no longer present obstacles to routine HIV testing.
Author Contributions: Ms Neff had full access to all of the data in the study and takes responsibility for the integrity of the data and the accuracy of the data analysis.
Study concept and design: Neff, Goldschmidt.
Acquisition of data: Neff.
Analysis and interpretation of data: Neff, Goldschmidt.
Drafting of the manuscript: Neff, Goldschmidt.
Critical revision of the manuscript for important intellectual content: Neff, Goldschmidt.
Statistical analysis: Neff.
Obtained funding: Goldschmidt.
Administrative, technical, or material support: Neff, Goldschmidt.
Study supervision: Goldschmidt.
Conflict of Interest Disclosures: Both authors have completed and submitted the ICMJE Form for Disclosure of Potential Conflicts of Interest and none were reported.
Funding/Support: The National HIV/AIDS Clinicians' Consultation Center has received support from the Centers for Disease Control and Prevention (CDC) and Health Resources and Services Administration (HRSA).
Role of the Sponsor: The funding agencies had no role in the design and conduct of the study; in the collection, analysis, and interpretation of the data; or in the preparation, review, or approval of the manuscript.
Additional Contributions: We are grateful to Bernard Branson, MD, of the Centers for Disease Control and Prevention (CDC) for his helpful suggestions and Kali Stanger, MD, resident, Contra Costa Family Practice Residency Program, Martinez, California, and Alison Chang, BA, medical student, Emory University School of Medicine, Atlanta, Georgia, for data collection for the Compendium of State HIV Testing Laws. Their uncompensated time and volunteered efforts are much appreciated.