SEARCH SITE
VIRGINIA LAW PORTAL
- Code of Virginia
- Virginia Administrative Code
- Constitution of Virginia
- Charters
- Authorities
- Compacts
- Uncodified Acts
- RIS Users (account required)
SEARCHABLE DATABASES
- Bills & Resolutions
session legislation - Bill Summaries
session summaries - Reports to the General Assembly
House and Senate documents - Legislative Liaisons
State agency contacts
ACROSS SESSIONS
- Subject Index: Since 1995
- Bills & Resolutions: Since 1994
- Summaries: Since 1994
Developed and maintained by the Division of Legislative Automated Systems.
2008 SESSION
083107664Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-62, 32.1-37.2 and 32.1-45.2 of the Code of Virginia is amended and reenacted as follows:
§ 18.2-62. Testing of certain persons for human immunodeficiency virus or hepatitis B or C viruses.
A. As soon as practicable following arrest, the attorney for the Commonwealth may request, after consultation with any victim, that any person charged with (i) any crime involving sexual assault pursuant to this article, (ii) any offenses against children as prohibited by §§ 18.2-361, 18.2-366, 18.2-370, and 18.2-370.1, or (iii) any assault and battery in which the victim was exposed to body fluids of the person arrested, be requested to submit to testing for infection with human immunodeficiency virus or hepatitis B or C viruses. The person so charged shall be counseled about the meaning of the test, about acquired immunodeficiency syndrome or hepatitis B or C viruses, and about the transmission and prevention of infection with human immunodeficiency virus or hepatitis B or C viruses.
If the person so charged refuses to submit to the test or the competency of the person to consent to the test is at issue, the court with jurisdiction of the case shall hold a hearing to determine whether there is probable cause that the individual has committed the crime with which he is charged. If the court finds probable cause, the court shall order the accused to undergo testing for infection with human immunodeficiency virus or hepatitis B or C viruses. The court may enter such an order in the absence of the defendant if the defendant is represented at the hearing by counsel or a guardian ad litem. The court's finding shall be without prejudice to either the Commonwealth or the person charged and shall not be evidence in any proceeding, civil or criminal.
B. Upon conviction, or adjudication as delinquent in the case of a juvenile, of any crime involving sexual assault pursuant to this article or any offenses against children as prohibited by §§ 18.2-361, 18.2-366, 18.2-370, and 18.2-370.1, the attorney for the Commonwealth may, after consultation with any victim and, upon the request of any victim shall, request and the court shall order the defendant to submit to testing for infection with human immunodeficiency virus or hepatitis B or C viruses. Any test conducted following conviction shall be in addition to such tests as may have been conducted following arrest pursuant to subsection A.
C. Confirmatory tests shall be conducted before any test
result shall be determined to be positive. The results of the tests for
infection with human immunodeficiency virus or hepatitis B or C viruses shall
be confidential as provided in § 32.1-36.1; however, the Department of Health
shall also disclose the results to any victim and offer appropriate counseling
as provided by subsection BC of §
32.1-37.2. The Department shall conduct surveillance and investigation in
accordance with § 32.1-39.
The results of such tests shall not be admissible as evidence in any criminal proceeding.
The cost of such tests shall be paid by the Commonwealth and taxed as part of the cost of such criminal proceedings.
§ 32.1-37.2. Informed consent for testing for human immunodeficiency virus; condition on disclosure of test results; counseling required; exceptions.
A. Oral or written informed consent separate and distinct from general consent to medical treatment shall not be required prior to performing any test to determine infection with human immunodeficiency virus.
B. Prior to performing any test to
determine infection with human immunodeficiency virus, the
subject of the test shall be given an oral or written explanation of the
meaning of the test. Except as otherwise authorized in this Code, informed
consent shall be obtained before such a test is performed.
Informed consent for testing for infection with
human immunodeficiency virus shall be deemed to have been obtained (i) when an
individual seeks the services of a facility offering anonymous testing for
infection with human immunodeficiency virus; (ii) when blood specimens which
were obtained for routine diagnostic purposes are tested in order to conduct
seroprevalence studies of infection with human immunodeficiency virus if such
studies are designed to prevent any specimen from being identified with any
specific individual; and (iii) when an individual donates or sells his blood. a
medical care provider shall inform the patient that the test is planned,
provide information about the test, and advise the patient that he has the
right to decline the test. If a patient declines the test, the medical care
provider shall note that fact in the patient’s medical file.
B.C. Every
person who is the subject of any test to determine infection for human
immunodeficiency virus shall be afforded the opportunity for individual
face-to-face disclosure of the test results and appropriate counseling.
Appropriate counseling shall include, but not be limited to, the meaning of the
test results, the need for additional testing, the etiology, prevention and
effects of acquired immunodeficiency syndrome, the availability of appropriate
health care, mental health care and social services, the need to notify any person
who may have been exposed to the virus and the availability of assistance
through the Department of Health in notifying such individuals.
C.D.
Opportunity for face-to-face disclosure of the test results and appropriate
counseling shall not be required when the tests are conducted by blood
collection agencies. However, all blood collection agencies shall notify the
Board of Health of any positive tests.
D.E. In
the case of a person applying for accident and sickness or life insurance who
is the subject of a test to determine infection for human immunodeficiency
virus, insurers' practices including an explanation of the meaning of the test,
the manner of obtaining informed consent, the method of disclosure of the test
results and any counseling requirements shall be as set forth in the
regulations of the State Corporation Commission.
§ 32.1-45.2. Public safety employees; testing for blood-borne pathogens; procedure available for certain citizens; definitions.
A. If, in the course of employment, an employee of a public safety agency is involved in a possible exposure prone incident, the employee shall immediately, or as soon thereafter as practicable, notify the agency of the incident in accordance with the agency's procedures for reporting workplace accidents.
B. If, after reviewing the facts of the possible exposure prone incident with the employee and after medical consultation, the agency concludes that it is reasonable to believe that an exposure prone incident may have occurred, (i) the agency shall request the person whose body fluids were involved to give informed consent, as provided in § 32.1-37.2, to submit to testing for hepatitis B or C virus and human immunodeficiency virus and to authorize disclosure of the test results or (ii) if the person is deceased, the agency shall request the custodian of the remains to preserve a specimen of blood and shall request the decedent's next of kin to provide informed consent, as provided in § 32.1-37.2, to such testing and to authorize disclosure of the test results.
C. If a person is involved in a possible exposure prone incident involving the body fluids of an employee of a public safety agency, the person may request the agency to review the facts of the possible exposure prone incident for purposes of obtaining the employee's informed consent, as provided in § 32.1-37.2, to test for hepatitis B or C virus and human immunodeficiency virus and to authorize disclosure of the test results. If, after reviewing the facts and after medical consultation, the agency concludes it is reasonable to believe an exposure prone incident involving the person and the employee may have occurred, (i) the agency shall request the employee whose body fluids were involved to give informed consent to submit to testing for hepatitis B or C virus and human immunodeficiency virus and to authorize disclosure of the test results or (ii) if the employee is deceased, the agency shall request the custodian of the remains to preserve a specimen of blood and shall request the decedent's next of kin to provide informed consent, as provided in § 32.1-37.2, to such testing and to authorize disclosure of the test results.
D. If informed consent is refused under subsection B of this section, the public safety agency or the employee may petition the general district court of the city or county in which the person resides or resided, or in the case of a nonresident, the city or county of the public safety agency's principal office, to determine whether an exposure prone incident has occurred and to order testing and disclosure of the test results.
If informed consent is refused under subsection C of this section, the person involved in the possible exposure prone incident may petition the general district court of the city or county of the public safety agency's principal office to determine whether an exposure prone incident has occurred and to order testing and disclosure of the test results.
E. If the court finds by a preponderance of the evidence that an exposure prone incident has occurred, it shall order testing for hepatitis B or C virus and human immunodeficiency virus and disclosure of the test results. The court shall be advised by the Commissioner or his designee in making this finding. The hearing shall be held in camera as soon as practicable after the petition is filed. The record shall be sealed.
F. A party may appeal an order of the general district court to the circuit court of the same jurisdiction within ten days from the date of the order. Any such appeal shall be de novo, in camera, and shall be heard as soon as possible by the circuit court. The circuit court shall be advised by the Commissioner or his designee. The record shall be sealed. The order of the circuit court shall be final and nonappealable.
G. Disclosure of any test results provided by this section
shall be made to the district health director of the jurisdiction in which the
petition was brought or the district in which the person or employee was
tested. The district health director or his designee shall inform the parties
of the test results and counsel them in accordance with subsection BC
of § 32.1-37.2.
H. The results of the tests shall be confidential as provided in § 32.1-36.1.
I. No person known or suspected to be positive for infection with hepatitis B or C virus or human immunodeficiency virus shall be refused services for that reason by any public safety agency personnel.
J. For the purpose of this section and for no other purpose, the term "employee" shall include: (i) any person providing assistance to a person employed by a public safety agency who is directly affected by a possible exposure prone incident as a result of the specific crime or specific circumstances involved in the assistance and (ii) any victim of or witness to a crime who is directly affected by a possible exposure prone incident as a result of the specific crime.
K. This section shall not be deemed to create any duty on the part of any person where none exists otherwise, and a cause of action shall not arise from any failure to request consent or to consent to testing under this section. The remedies available under this section shall be exclusive.
L. For the purposes of this section, the following terms shall apply:
"Exposure prone incident" means a direct exposure to body fluids of another person in a manner which may, according to the then current guidelines of the Centers for Disease Control, transmit hepatitis B or C virus or human immunodeficiency virus and which occurred during the commission of a criminal act, during the performance of emergency procedures, care or assistance, or in the course of public safety or law-enforcement duties.
"Public safety agency" means any sheriff's office and any adult or youth correctional, law-enforcement, fire safety organization or any agency or department that employs persons who have law-enforcement authority and which is under the direction and control of the Commonwealth or any local governing body.