BOX 6.1 Sample State Laws and Regulations about Perinatal HIV Counseling and Testing

  • In Texas, section 97.135 of the state health code, amended in 1996, requires prenatal care providers to distribute information about HIV provided by the Texas Department of Health, verbally notify women (and note in their medical records that notification was given) that an HIV test will be performed if the patient does not object, advise women that the test is not anonymous, and take a sample of blood and have it tested for HIV infection. In addition, physicians or others who attend births must test new mothers or umbilical cord blood for HIV within 24 hours of delivery for all births, unless the women objects.
  • As of January 1, 1998, the Tennessee HIV Pregnancy Screening Act of 1997 requires all providers who assume responsibility for prenatal care "to counsel pregnant women regarding HIV infection and, except in cases where women refuse testing, to test these women for HIV and to provide counseling for those women who test positive."
  • New Jersey has had a law since 1995 requiring prenatal care providers to provide their patients with information about HIV and AIDS, inform them of the benefits of being tested for HIV, and present them with the option of being tested. The New Jersey Department of Health and Senior Services has no authority to enforce this law, but has undertaken a number of programs to educate providers and patients about its provisions.
  • California statute requires every prenatal care provider to offer HIV information and counseling (the content of which is specified in the law), and to offer an HIV test, to every pregnant patient. The offering must include discussion of the purpose of the test, its risks and benefits, and the voluntary nature of the test. The law also requires that these activities be documented in the woman's medical record. The state has also developed and widely disseminated comprehensive clinician education and resource materials (including interactive teaching materials for use with patients) and has made a toll-free clinician help line available.
  • Since 1996, the New York Department of Health (DoH) has had regulations requiring hospitals, diagnostic and treatment centers, health maintenance organizations, and birthing centers (all of which are regulated by the DoH) to provide HIV counseling and recommend voluntary testing to all women in prenatal care. According to DoH, universal HIV counseling and recommended voluntary testing is now the standard of medical care for all prenatal care settings, whether regulated or not. Pre-test counseling must be provided, and written informed consent for the HIV test must be recorded on a DoH-approved consent form.

Three states (Indiana, New Jersey, Rhode Island) have routine "opt-in" procedures, which require prenatal care providers to offer the test. Testing is voluntary with informed consent in the remaining 47 states. According to state policies or laws, prenatal HIV counseling is required in 22 states, is routine in 10 states, and is recommended in 18 states.

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