Statutory impediments to implementation of the 2006 CDC recommendations for HIV testing in healthcare settings

Background: The CDC recently recommended a major revision to testing policy – ‘opt-out' HIV screening of all patients in health-care settings. Existing state-level law regarding HIV testing may limit implementation of the new CDC recommendations.

Methods: Novel provisions of the 2006 Recommendations were analyzed for relevance to state-level HIV statutes. Utilizing data on HIV law from the AHA, criteria for three categories of state-level statutory environments – ‘Minor,' ‘Moderate,' and ‘Severe' Statutory Impediments' – were developed. Each state was assigned to one of these three categories. Strategies to optimally implement the recommendations within current statutory restrictions were developed.

Results: The 2006 Recommendations state: 1) ‘separate written consent should not be required and general consent for medical care should be sufficient for HIV testing' and 2) pre/post test ‘prevention counseling should not be required.' Numerous states mandate informed consent and/or prevention counseling when performing an HIV testing and specific elements of their statutes vary. Seven states fall in the ‘Severe' impediment category, where meaningful implementation of the new policy is not possible without legislative amendment. Twenty-four states fall into the ‘Moderate' category, where partial implementation utilizing either modified informed consent/counseling procedures is possible. Twenty states fall into the ‘Minor' category, where the statutory environment is most amenable to full implementation.

Conclusions: Currently, comprehensive implementation of the 2006 CDC recommendations for HIV testing is not legally permissible in 31 of 50 states. Public health officials should 1) develop partial implementation plans that are legally permissible and 2) work with legislators to amend obstructive laws.