States loosen HIV testing laws on patient consent

Changes benefit post-exposure treatment

Obtaining source patient consent for HIV testing after a bloodborne pathogen exposure may slowly be getting easier. Some states have responded to the Centers for Disease Control and Prevention recommendation to make HIV testing a routine part of health care.

For example, as of Jan. 1, written informed consent for HIV testing is no longer required in California. Clinicians may simply inform the patient that they want to order an HIV test and give them an opportunity to decline. Pre- and post-test counseling also is not required. Similarly, Illinois and Maine also have eliminated the requirement for written consent.

In 2006, CDC called for health care facilities to conduct routine testing for HIV, while allowing patients an opportunity to "opt out." Widespread testing would identify unrecognized HIV infection and give people an opportunity to benefit from early treatment, the CDC said.

The recommendation would indirectly impact post-exposure testing of source patients because more patients would know their HIV status.

"I don't think it will eliminate the need to do source patient testing, but it will give a much better idea right at the start whether post-exposure prophylaxis (PEP) is needed," says Ronald H. Goldschmidt, MD, director of the National HIV/AIDS Clinicians' Consultation Center at the University of California-San Francisco, which runs the PEPLine advice call line for clinicians [(888) HIV-4911].

"It would be useful in many instances, but this doesn't necessarily mean every time there's an occupational exposure you're going to know somebody's status," concurs Lisa Panlilio, MD, MPH, medical epidemiologist with CDC's Division of Healthcare Quality Promotion.

Rapid risk assessment

Risk assessment of the exposure and the source patient still should occur immediately after an exposure, says Goldschmidt, who is also professor of Clinical Family and Community Medicine and vice chair of the UCSF Department of Family and Community Medicine San Francisco General Hospital. It may be prudent to start PEP while getting more information about the source patient, he says.

"Everything we know about PEP seems to indicate that the sooner one starts, the better it is," he says.

New "opt-out" laws may make it quicker to get consent, he says. "The process of getting written consent and providing counseling has been seen in the past as burdensome and difficult for the busy clinician to do," he says. "In part, what this new [CDC] guideline, and in California this new law, addresses is a way to make that less cumbersome. It eliminates the need for extensive counseling, which to some people means sitting down for an hour and discussing all about HIV and safe sex practices.

"Basically, the new law allows one not to do such extensive counseling and get written consent. It's something that can happen in a few short sentences between the clinician and patient," Goldschmidt says.

Legacy of stigma

HIV testing laws vary from state to state, but many of them were written amid widespread fear and stigma about AIDS and HIV infection. Researchers at Georgia State University School of Law and the University of San Francisco found that most states require specific consent for HIV testing. In 14 states, that must include written informed consent, and in 11 states, clinicians must provide pretest counseling.1

State laws on source patient consent for testing after a significant exposure also vary widely. The National HIV/AIDS Clinician Consultation Center (, which maintains the PEPline, has developed a compendium of state HIV testing laws and posted it on the center's web site.

"Because of concerns about occupational exposures, there was legislation passed in a number of states that permitted testing of potential source patients without consent in the context of an occupational exposure," notes Panlilio.


1. Wolf LE, Donoghoe A, Lane T. (2007) Implementing Routine HIV Testing: The Role of State Law. PLoS ONE 2(10): e1005. doi:10.1371/journal.pone.0001005.