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RELEASE OF HIV TEST RESULTS:
FAQs

• What kind of information requires the patient’s specific written consent for release? HIV test results, whether positive or negative.
• What must physicians do in order to release HIV test results? Physicians who order HIV tests or use HIV test results in the course of treatment are required to obtain the patient’s written consent prior to releasing this specific information.
• What if the patient discloses his HIV status to the physician? The requirement of specific, written consent applies only to HIV test results. Voluntary disclosures made by the patient during the course of treatment are still confidential, and worthy of protection, but are not considered HIV test results. Similarly, the heightened requirements for release of HIV test results do not apply to release of information regarding an AIDS-related condition (e.g. immunosuppression) or an AIDS-related diagnosis.¹
• What information should be included on the medical records consent to release form for HIV test results? A specific, written consent form will include: (1) permission to release the patient’s HIV test results, (2) the person(s) to whom release will be made, (3) the purpose of release, (4) the patient’s signature, and (5) the date of signing.
• Should records containing HIV test results be released in response to a subpoena? No. A subpoena is insufficient. HIV test results should be released only with a patient’s permission, or in response to a Court order signed by a judge.
• Is a physician legally obligated to notify a sexual partner(s) or known or suspected contacts of an HIV positive patient? No. Giving notice to partners is not required by law. However, the physician may choose to disclose positive HIV test results to persons believed to be at-risk (e.g., a patient’s spouse, sexual partner or needle-sharing partner).² But, prior to making disclosure to any third party, the law requires that the physician do the following: (1) discuss test results with the patient and provide proper counseling; (2) attempt to obtain the patient’s consent to notify any third parties; or (3) notify the patient prior to contacting at-risk third parties.
• Can HIV information be shared with health care workers? Yes. HIV test results may be shared, on a need-to-know basis with other health care workers, provided these individuals are directly involved in the patient’s care or serve as members of the patient’s health care team.
• Must positive HIV test results be reported to the local health department? Yes. Effective July 1, 2002, California law now requires the physician to report positive HIV test results to the local health department. This reporting is done using a non-name code in order to protect the HIV patient’s privacy. Contact the local health department for more specific information regarding the proper reporting procedure.
• What else can be done to ensure that HIV test results are released only to authorized persons, when appropriate? There are effective ways to prevent, or to minimize the risk of, improper release of HIV test results. Physicians may adopt a charting system to segregate sensitive information from other medical information. The use of color-coding, or a separate envelope within the medical record, or a cover sheet marked: “Confidential: see office manager prior to copying,” are all ways of alerting those handling the medical record that HIV test results, or other sensitive information, should not be copied or released without specific approval.
• What if a patient requests that his HIV status not be released? If the patient requests that the physician remove or withhold certain information from the release of the medical record, such a request should be treated seriously. The physician may honor such a request if the information is protected by special confidentiality laws (e.g. HIV test results, mental health, sexual abuse, etc.) but sending an incomplete medical record could pose additional risks. If any portion of the medical record is withheld, good practice suggests a generic statement to the requesting party, to the effect: “There may or may not be information excluded from this record, as required by State or federal law, absent the patient’s specific written consent for release.” This statement should appear on every incomplete release. Once the requesting party has notice that information may be withheld from the release, the burden of obtaining the patient’s consent shifts to the requesting party.
• Should a physician honor a patient’s request that his HIV test results or diagnosis not be documented? No. Honoring such a request could constitute a deliberate omission and grounds for professional discipline, as well as a serious violation of law.
  
  

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  1 Special handling of medical records containing HIV tests results and any AIDS-related information is recommended. If you have specific questions, contact CAP-MPT’s Hotline [1 (800) 252-0555] for assistance.
  
  2 When notifying third parties, the physician may not reveal the patient’s identity. Although the physician need not notify at-risk contacts, the physician does have a duty to educate the patient regarding the nature of HIV and how it can be transmitted to others. The physician should counsel the patient to make voluntary disclosure of his HIV status. In this way, the physician fulfills a professional obligation to both known and even unknown contacts of the HIV positive patient. The nature of a physician’s duty to educate and counsel his patient may vary depending upon the circumstances. If in doubt, consult CAP-MPT’s Hotline for assistance.