PROPOSAL
Issue Date: January 19, 2018
Volume 45 • Issue 2 • Pages 115—117
Title 10
MARYLAND DEPARTMENT OF HEALTH
Subtitle 52 PREVENTIVE MEDICINE
10.52.10 HIV and Hepatitis C Testing of Persons Accused or Convicted, or Both, of Certain Crimes
Authority: [Article 27, §765] Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland
Notice of Proposed Action
[18-015-P]
The Secretary of Health proposes to amend Regulations .01—.03 and .05—.07 under COMAR 10.52.10 HIV and Hepatitis C Testing of Persons Accused or Convicted, or Both, of Certain Crimes.
Statement of Purpose
The purpose of this action is to:
(1) Include hepatitis C as a disease for which a person charged with causing a prohibited exposure may be tested; and
(2) Fulfill testing requirements for prohibited exposures for HIV and hepatitis C in accordance with Chs. 485 and 486 (H.B. 1375/S.B. 781), Acts of 2017.
Comparison to Federal Standards
There is no corresponding federal standard to this proposed action.
Estimate of Economic Impact
The proposed action has no economic impact.
Economic Impact on Small Businesses
The proposed action has minimal or no economic impact on small businesses.
Impact on Individuals with Disabilities
The proposed action has no impact on individuals with disabilities.
Opportunity for Public Comment
Comments may be sent to Michele Phinney, Director, Office of Regulation and Policy Coordination, Maryland Department of Health, 201 West Preston Street, Room 512, Baltimore, MD 21201, or call 410-767-6499 (TTY 800-735-2258), or email to mdh.regs@maryland.gov, or fax to 410-767-6483. Comments will be accepted through February 20, 2018. A public hearing has not been scheduled.
.01 Scope.
This chapter establishes procedures for HIV [testing and counseling] and hepatitis C testing ordered under the provisions of [Article 27, §765] Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
.02 Definitions.
A. (text unchanged)
B. Terms Defined.
(1)—(2) (text unchanged)
(3) [“Exposure” means one of the following:] Exposure.
(a) “Exposure” means one of the following:
[(a)] (i)—[(d)] (iv) (text unchanged)
(b) “Exposure” includes a prohibited exposure as defined by Criminal Procedure Article, §11-107(e), Annotated Code of Maryland.
(4) “Health officer” means the Baltimore City Commissioner of Health or [an individual appointed by the Secretary to head a local health department] the health officer of a county.
(5)—(6) (text unchanged)
(7) “Local health department” means the official public health agency in Baltimore City or [any] a Maryland county.
(8) (text unchanged)
(9) “Offender” means one of the following:
(a) An individual convicted of an offense and ordered by a court to furnish a [blood] sample to be tested for the presence of HIV or hepatitis C under [Article 27, §765] Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland;
(b) An individual being granted probation before judgment and ordered by a court to furnish a [blood] sample to be tested for the presence of HIV or hepatitis C under [Article 27, §765] Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland; or
(c) An individual charged with an offense and ordered by a court to furnish a [blood] sample to be tested for the presence of HIV or hepatitis C under [Article 27, §765] Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
(10) “Offense” means[:
(a) Any prohibited activity involving a sexual act that includes:
(i) Contact between the penis and the vulva or the penis and the anus, including penetration however slight; or
(ii) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or
(b) Any other] any criminal offense or delinquent act the commission of which may have caused or resulted in an exposure.
(11)—(13) (text unchanged)
(14) “Secretary” means the Secretary of [the Department of] Health.
(15) Victim.
(a) (text unchanged)
(b) “Victim” includes the:
(i) [The parent] Parent of a victim who is a minor;
(ii) [The legal] Legal guardian of a victim; [or]
(iii) [The person] Individual authorized to give [substituted] surrogate consent for the victim under Health-General Article, [§20-107] §5-605, Annotated Code of Maryland[.]; and
(iv) Victim as defined by Criminal Procedure Article, §11-107(f), Annotated Code of Maryland.
.03 Notice.
A. The [Health Officer] health officer shall require receipt of a written notice and a copy of a court order for testing from a State’s Attorney before initiating the process of HIV or hepatitis C testing and notification described in this chapter.
B.—D. (text unchanged)
E. If the current residence of the victim is outside of Maryland, the health officer who receives the notification described in §A of this regulation shall send a letter to:
(1) The state health department of the state in which the victim resides, requesting assistance with providing appropriate [information and counseling] services to the victim; and
(2) The victim, explaining that the victim may do one of the following to obtain information about the offender’s HIV or hepatitis C test result:
(a)—(b) (text unchanged)
.05 Testing of Offender.
A. [Pretest Counseling, Blood Drawing, and Post-Test Counseling] HIV and Hepatitis C Testing.
(1) Specimen Collection.
(a) A specimen shall be collected from an offender following the methods described in the specifications for the blood or oral fluid test used.
(b) The local health department shall provide guidance on how specimens shall be collected.
[(1)] (2) If the offender is incarcerated in a facility under the jurisdiction of the Department of Public Safety and Correctional Services, [pretest counseling, blood drawing, and post-test counseling] HIV and hepatitis C testing of the offender may be performed by an employee or contractor of either the:
(a)—(b) (text unchanged)
[(2)] (3) If the offender is incarcerated in a facility under the jurisdiction of the county, [pretest counseling, blood drawing, and post-test counseling of the offender] HIV and hepatitis C testing may be performed by an employee or contractor of either the:
(a)—(b) (text unchanged)
[(3)] (4) If the offender is not incarcerated, an employee or contractor of the local health department shall perform [pretest counseling, blood drawing, and post-test counseling] HIV and hepatitis C testing of the offender.
B. The health officer shall send a certified letter, accompanied by a copy of the court order for testing, to each offender who is not incarcerated, to notify the offender of all of the following:
(1) That the health officer has been instructed by the court to perform an HIV or hepatitis C test on the offender; and
(2) (text unchanged)
C. [Pretest Counseling.
(1)] The health officer or designee shall do all of the following:
[(a)] (1) Conduct a face-to-face discussion with the offender before [blood is drawn] a sample is collected for an HIV or hepatitis C test;
[(b)] (2) Include all of the topics described in COMAR [10.52.08.03D(5)—(15)] 10.18.08.06 regarding the offender’s HIV test in the discussion; and
[(c)] (3) Sign a form indicating that [pretest counseling of the offender was conducted] the health officer or designee offered information to the offender on the HIV or hepatitis C test.
[(2) The health officer or designee may obtain the signature of the offender on the form indicating that pretest counseling was conducted.]
D. Blood Drawing and Testing.
(1) The health officer may not use the result of a previous HIV or hepatitis C test instead of conducting an HIV or hepatitis C test required under the provisions of [Article 27, §765] Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
(2) The health officer may not use a sample [of blood drawn] taken for another purpose instead of obtaining a sample [of blood] in order to conduct an HIV or hepatitis C test required under [Article 27, §765] Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
(3) The health officer or designee shall:
(a) Obtain a [blood] sample from the offender;
[(b) Put the code “RP” on the blood sample and the test order;]
[(c)] (b) (text unchanged)
[(d)] (c) Send the [blood] sample to the [Community Health Surveillance and] Laboratories Administration within the Department for an HIV or hepatitis C test.
E. [Post-Test Counseling.
(1)] Upon receipt of the test result of the offender, the health officer or designee shall:
[(a)] (1) (text unchanged)
[(b)] (2) Transmit the test result to the individual designated by the health officer to [perform post-test counseling] provide post-test information, including the topics listed in COMAR 10.18.08 that are applicable to the HIV test result.
[(2) The health officer or designee of the health officer shall:
(a) Notify the offender of the result of the HIV test; and
(b) Discuss with the offender all of the topics listed in COMAR 10.52.08.07 which are applicable to the test result obtained.]
F. Charges. The local health department shall charge the offender for the expenses incurred in carrying out the responsibilities outlined in this regulation if the court has ordered the defendant to make restitution for expenses incurred by the Department under [Article 27, §765] Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
G. State’s Attorney Notification. The health officer shall notify the State’s Attorney who transmitted the victim’s request for an HIV or hepatitis C test when one or more of the following actions occurs:
(1) HIV or hepatitis C testing of an offender, including pretest [counseling] and post-test [counseling] information, is completed;
(2) An offender refuses to allow a [blood] sample to be [drawn] taken for [an HIV test] testing;
(3) (text unchanged)
(4) An offender who is not incarcerated fails to appear for HIV or hepatitis C testing.
.06 [Counseling of] Information for the Victim.
A. The health officer or [the] designee [of the health officer] shall provide the victim with [counseling] information addressing all of the following:
(1) An explanation of HIV [and], AIDS, and hepatitis C;
(2) An explanation of the risks of HIV and hepatitis C transmission in the course of a sexual or other offense;
(3) The advisability of HIV and hepatitis C testing of the victim;
(4) The advisability of the victim taking precautions to prevent the spread of HIV and hepatitis C until it is certain that the victim is not infected; [and]
(5) The advisability of the victim starting post-exposure prophylaxis prior to receiving test results; and
[(5)] (6) The HIV and hepatitis C test result of the offender.
B. If the HIV or hepatitis C test result of the offender is positive, the health officer or designee [of the health officer] shall offer, provide, or arrange for appropriate HIV [counseling] or hepatitis C services, [as described in COMAR 10.52.08.07,] including referral for appropriate health care and support services, for the victim.
C. (text unchanged)
D. The health officer or designee [of the health officer] shall inform the victim about the requirements for confidentiality of information relating to the HIV or hepatitis C test result of the offender, as specified in Regulation .07C and D of this chapter.
.07 Confidentiality.
A. Local Health Department Records. The local health department shall maintain separate confidential records [relating to the counseling of a victim and the counseling and HIV testing of] of information and test results given to an offender required under the provisions of [Article 27, §765] Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
B. Disclosure by Health Officer or Designee.
(1) Except as provided in Regulations .05E and [.06A(5)] .06A(6) of this chapter and as otherwise provided by law, the health officer or designee [of the health officer] may not disclose the HIV or hepatitis C result of the offender.
(2) The health officer or designee [of the health officer] may not place the HIV or hepatitis C test result of the offender in any record relating to the offender maintained within a facility in which the offender is incarcerated.
C. (text unchanged)
D. Redisclosure. [A person] An individual notified of the result of an HIV or hepatitis C test performed under provisions of this chapter may not disclose the information except to protect the health and safety of:
(1)—(3) (text unchanged)
DENNIS SCHRADER
Secretary of Health
