State HIV Testing Laws: Consent and Counseling Requirements

Human immunodeficiency virus (HIV) testing is essential for improving the health of people living with HIV and reducing new HIV infections: once diagnosed, persons with HIV can be linked to care and learn how to prevent transmission to others. Testing that occurs as part of an individual’s routine healthcare visit is especially important because it creates the opportunity to diagnose infections in people who may not consider themselves at risk for HIV. Data indicate that, of the estimated 1.1 million adults and adolescents living with HIV in the United States at the end of 2009, 18% were unaware of their infection. 1 State laws that facilitate routine testing are vital to efforts to ensure all Americans know their status.

In 2006, CDC published its Revised Recommendations for HIV Testing of Adults, Adolescents, and Pregnant Women in Health-Care Settings. These recommendations support routine testing and differ from previous recommendations in ways that impacted state laws addressing HIV testing procedures in regards to informed consent and pre-test counseling. Specifically, these recommendations stated that:

• Separate written consent for HIV testing is not recommended. General informed consent for medical care that notifies the patient that an HIV test will be performed unless the patient declines (opt-out screening) should be considered sufficient to encompass informed consent for HIV testing.
• Prevention counseling—defined as an interactive process of assessing risk of infection, recognizing specific behaviors that increase this risk, and developing a plan to reduce risk—should not be required with HIV diagnostic testing or as part of HIV screening programs in health-care settings.

Currently, all but two states, Nebraska and New York, have laws that are consistent with CDC recommendations (click here to find out about specific states).

1 CDC. Monitoring selected national HIV prevention and care objectives by using HIV surveillance data—United States and 6 U.S. dependent areas—2010. HIV Surveillance Supplemental Report 2012;17 (No. 3, part A). Published June 2012 [p6]

The information presented here does not constitute legal advice and does not represent the legal views of the Centers for Disease Control and Prevention or the Department of Health and Human Services, nor is it a comprehensive analysis of all legal provisions relevant to HIV. This information is subject to change and does not contain measures implemented by counties, cities, or other localities. Use of any provision herein should be contemplated only in conjunction with advice from legal counsel.