State statutes require that HIV related information obtained in the course of providing a health or social service be kept confidential. Disclosure of such information is only permitted in narrowly defined need-to-know circumstances[i].
For instance, NY CLS Pub Health § 2782 provides that no person who obtains confidential HIV related information in the course of providing any health or social service or pursuant to a release of confidential HIV related information may disclose or be compelled to disclose such information, except to the following persons:
- the protected individual;
- any person to whom disclosure is authorized pursuant to a release of confidential HIV related information;
- a health care provider or health facility;
- an agent or employee of a health facility or health care provider;
- health facility staff committees or accreditation or oversight review organizations authorized to access medical records;
- a federal, state, county or local health officer;
- an authorized agency in connection with foster care or adoption of a child;
- third party reimbursers or their agents to the extent necessary to reimburse health care providers for health services;
- an insurance institution;
- any person to whom disclosure is ordered by a court of competent jurisdiction;
an employee or agent of the division of parole;
- an employee or agent of the division of probation and correctional alternatives or any local probation department;
- a medical director of a local correctional facility;
- an employee or agent of the commission of correction;
- an attorney appointed to represent a minor pursuant to the social services law or the family court act.
A state, county or local health officer may disclose confidential HIV related information when:
- disclosure is specifically authorized or required by federal or state law; or
- disclosure is made pursuant to a release of confidential HIV related information; or
- disclosure is requested by a physician; or
- disclosure is authorized by court order.
Confidential HIV-related information means any information which is in the possession of a person who provides one or more health or social services or who obtains the information pursuant to a release of confidential HIV-related information and which concerns whether an individual has been the subject of an HIV-related test, or has HIV, HIV-related illness or AIDS; or any information which identifies or reasonably could identify an individual as having one or more of these conditions, including information pertaining to the individual’s contacts[ii].
A plaintiff has the right to maintain a private cause of action against his/her physician for a disclosure of confidential human immunodeficiency virus related information[iii]. In Nolley v. County of Erie, 776 F. Supp. 715 (W.D.N.Y. 1991)the court held that a policy requiring the identification and segregation of prisoners with HIV constituted a disclosure of HIV test results in violation of an AIDS confidentiality statute.
Unless disclosure is expressly provided by statute, it may be obtained only by court order for good cause shown. In assessing good cause, courts are required to weigh the public interest and need for disclosure against the injury to the person who is the subject of the record, to the physician-patient relationship, and to the services offered by the program of diagnosis and treatment of AIDS and conditions related to HIV infection[iv]. Moreover, if good cause is found, courts are required to determine the extent to which disclosure is necessary and to impose appropriate safeguards.
Statutes prohibit and assess a civil penalty to persons negligently disclosing results of a blood test to detect antibodies to the probable causative agent of acquired immune deficiency syndrome to any third party. However, the statutory language appears to apply only to disclosures by persons having access to the record of the results of a blood test[v]. Disclosure of test results by persons learning of the results from the health care provider or from the blood bank is prohibited by statutes[vi].
AIDS confidentiality statutes do not protect defendants from the disclosure of their AIDS or HIV status for use in a prosecution for criminal conduct involving the AIDS virus[vii]. Likewise, the AIDS Confidentiality statute does not prohibit the disclosure of the identity of an individual who has been charged with a felony offense in open court, a matter clearly of public record[viii].
No court issues an order to allow access to confidential HIV-related information unless the court finds that the person seeking to disclose the information has a compelling need to do so[ix]. Even a criminal court has jurisdiction to issue an order compelling to disclose information[x].
AIDS confidentiality statute does not authorize a court to order testing to determine the human immunodeficiency virus (HIV) status of a person or to order the disclosure of the test results to complainant, where the request is not made to develop evidence for use in the criminal action, but only to reassure the complainant[xi].
In interpreting the Confidentiality of HIV-Related Information statutes, the courts discern the intent of the legislature in promulgating it, and its underlying policies[xii]. AIDS confidentiality statute is intended to protect the confidentiality of individual AIDS records while assuring their limited availability for essential health, scientific and other legitimate purposes[xiii].
Under some jurisdictions an AIDS confidentiality statute has been held not to apply to discovery in a court, since the act was merely a general health regulation and stated guidelines for conducting AIDS tests[xiv]. However, under some other jurisdictions it was held that even though an AIDS confidentiality statute did not confer an absolute privilege on a party against discovery, the legislative intent required that motions for discovery be denied[xv].
[i] Nolley v. County of Erie, 776 F. Supp. 715 (W.D.N.Y. 1991).
[ii] In re Milton S. Hershey Med. Ctr. of State Univ., 407 Pa. Super. 565, 573 (Pa. Super. Ct. 1991).
[iii] Doe v. Roe, 190 A.D.2d 463 (N.Y. App. Div. 4th Dep’t 1993).
[iv] Snyder v. Mekhjian, 244 N.J. Super. 281 (App.Div. 1990).
[v] Urbaniak v. Newton, 226 Cal. App. 3d 1128 (Cal. App. 1st Dist. 1991).
[vi] Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis. 2d 905 (Wis. Ct. App. 1989).
[vii] State v. Stark, 66 Wn. App. 423 (Wash. Ct. App. 1992).
[viii] In re Application of Multimedia KSDK, Inc., 221 Ill. App. 3d 199 (Ill. App. Ct. 5th Dist. 1991).
[ix] In re Milton S. Hershey Med. Ctr. of State Univ., 407 Pa. Super. 565, 574 (Pa. Super. Ct. 1991).
[x] People v. Anonymous, 153 Misc. 2d 436 (N.Y. County Ct. 1992).
[xi] John Doe v. Connell, 179 A.D.2d 196 (N.Y. App. Div. 4th Dep’t 1992).
[xii] In re Milton S. Hershey Med. Ctr. of State Univ., 407 Pa. Super. 565 (Pa. Super. Ct. 1991).
[xiii] Snyder v. Mekhjian, 244 N.J. Super. 281 (App.Div. 1990).
[xiv] Gulf Coast Regional Blood Center v. Houston, 745 S.W.2d 557 (Tex. App. Fort Worth 1988).
[xv] Doe v. American Nat’l Red Cross, 788 F. Supp. 884 (D.S.C. 1992).