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With relatively little fanfare, Massachusetts Governor Deval
Patrick signedS.2158, into law on April 27, 2012, making HIV
testing possible with simply verbal consent, as opposed to written
consent. The legislation amends Mass. Gen. L. ch. 111, section 70F; its aim is
to increase screening for HIV and I believe it will have that
effect.
Will the change in the law have an impact on health information
management? I believe it will. If there are more HIV tests, there
will be more HIV records. And if there are more HIV tests, there
will be more requests for HIV records.
The Massachusetts Department of Public Health has published some
FAQs that are worth reviewing in this regard:
Q. Does the consent signed by the patient have
to be lengthy in order to meet the "written informed
consent" requirement?
A. No. The law is silent on the issue of what
the consent must look like. A simple statement indicating that the
patient understands what s/he is being tested for and agrees to be
tested is sufficient. (See attached model consent form.)
Q. Does 70F require a pre‐test
counseling session before an HIV test is administered?
A. No. Section 70F does not mention
counseling.
Q. Does the law specify that the signed consent
must "follow" the patient through the health care
facility (e.g., from the ordering physician to the laboratory to
follow‐up care)?
A. No. As long as the patient has been informed
about the test and has signed a consent, the consent itself need
not be held or viewed by other staff involved in the testing or
follow‐up process. The signature of the ordering
physician on the test request form will serve as notice that the
patient has provided written informed consent.
Q. Does the law specify who may obtain consent
from a patient or who may conduct specimen procurement,
interpretation of results, or delivery of results to patients?
A. No. The law is silent on this point. Anyone
who is authorized by the state to conduct HIV testing, including
rapid testing and collection of oral mucosal samples, may obtain
consent and participate in all other ways in the testing and
follow‐up procedures. Authorized individuals may include
HIV testing counselors, physicians, nurses, nurse practitioners,
physician assistants, and other health care professionals.
Q. May an HIV test consent be included among
other consents and legal documents at intake? For instance, may the
consent for HIV testing be part of a general consent to care
developed by individual sites?
A. Yes. The consent may be part of a general
consent to care form as long as the language pertaining to the HIV
test is distinct from the rest of the consent. Provided that the
person consenting to the HIV test is informed about the test and
understands what it is, there is nothing in 70F that prohibits
health care providers from including the consent with other
materials and from obtaining the consent at intake. If the consent
to HIV testing is temporally separate from the test itself, the
provider should let the individual know when the test is actually
performed.
Q. Does the law specify how the signed consent
needs to be stored?
A. No. Section 70F does not mention storage of
consent forms. Existing rules and regulations regarding
confidential storage of medical records apply to consent forms for
HIV testing.
Q. Does the law require a time‐limit
on the consent?
A. No, the law does not. The MDPH recommends
that consent expire after no more than one year.
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