(410 ILCS 305/3) (from Ch. 111 1/2, par. 7303)
Sec. 3. Definitions. When used in this Act:
(a) "AIDS" means acquired immunodeficiency syndrome. (b) "Authority" means the Illinois Health Information Exchange Authority established pursuant to the Illinois Health Information Exchange and Technology Act. (c) "Business associate" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 160.103. (d) "Covered entity" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 160.103. (e) "De-identified information" means health information that is not individually identifiable as described under HIPAA, as specified in 45 CFR 164.514(b). (f) "Department" means the Illinois Department of Public Health or its designated agents.
(g) "Disclosure" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 160.103. (h) "Health care operations" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 164.501. (i) "Health care professional" means (i) a licensed physician, (ii) a licensed
physician assistant, (iii) a licensed advanced practice registered nurse, (iv) an advanced practice registered nurse or physician assistant who practices in a hospital or ambulatory surgical treatment center and possesses appropriate clinical privileges, (v) a licensed dentist, (vi) a licensed podiatric physician, or (vii) an
individual certified to provide HIV testing and counseling by a state or local
public health
department. (j) "Health care provider" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 160.103.
(k) "Health facility" means a hospital, nursing home, blood bank, blood
center, sperm bank, or other health care institution, including any "health
facility" as that term is defined in the Illinois Finance Authority
Act.
(l) "Health information exchange" or "HIE" means a health information exchange or health information organization that oversees and governs the electronic exchange of health information. In certain circumstances, in accordance with HIPAA, an HIE will be a business associate. (m) "Health oversight agency" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 164.501. (n) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, Public Law 111-05, and any subsequent amendments thereto and any regulations promulgated thereunder. (o) "HIV" means the human immunodeficiency virus. (p) "HIV-related information" means the identity of a person upon whom an HIV test is performed, the results of an HIV test, as well as diagnosis, treatment, and prescription information that reveals a patient is HIV-positive, including such information contained in a limited data set. "HIV-related information" does not include information that has been de-identified in accordance with HIPAA. (q) "Informed consent" means: (1) where a health care provider, health care |
| professional, or health facility has implemented opt-in testing, a process by which an individual or their legal representative receives pre-test information, has an opportunity to ask questions, and consents verbally or in writing to the test without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion; or
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(2) where a health care provider, health care
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| professional, or health facility has implemented opt-out testing, the individual or their legal representative has been notified verbally or in writing that the test is planned, has received pre-test information, has been given the opportunity to ask questions and the opportunity to decline testing, and has not declined testing; where such notice is provided, consent for opt-out HIV testing may be incorporated into the patient's general consent for medical care on the same basis as are other screening or diagnostic tests; a separate consent for opt-out HIV testing is not required.
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In addition, where the person providing informed consent is a participant in an HIE, informed consent requires a fair explanation that the results of the patient's HIV test will be accessible through an HIE and meaningful disclosure of the patient's opt-out right under Section 9.6 of this Act.
A health care provider, health care professional, or health facility undertaking an informed consent process for HIV testing under this subsection may combine a form used to obtain informed consent for HIV testing with forms used to obtain written consent for general medical care or any other medical test or procedure, provided that the forms make it clear that the subject may consent to general medical care, tests, or procedures without being required to consent to HIV testing, and clearly explain how the subject may decline HIV testing. Health facility clerical staff or other staff responsible for the consent form for general medical care may obtain consent for HIV testing through a general consent form.
(r) "Limited data set" has the meaning ascribed to it under HIPAA, as described in 45 CFR 164.514(e)(2).
(s) "Minimum necessary" means the HIPAA standard for using, disclosing, and requesting protected health information found in 45 CFR 164.502(b) and 164.514(d).
(s-1) "Opt-in testing" means an approach where an HIV test is presented by offering the test and the patient accepts or declines testing.
(s-3) "Opt-out testing" means an approach where an HIV test is presented such that a patient is notified that HIV testing may occur unless the patient declines.
(t) "Organized health care arrangement" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 160.103.
(u) "Patient safety activities" has the meaning ascribed to it under 42 CFR 3.20.
(v) "Payment" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 164.501.
(w) "Person" includes any natural person, partnership, association, joint venture, trust, governmental entity, public or private corporation, health facility, or other legal entity.
(w-5) "Pre-test information" means:
(1) a reasonable explanation of the test, including
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| its purpose, potential uses, limitations, and the meaning of its results; and
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(2) a reasonable explanation of the procedures to be
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| followed, including the voluntary nature of the test, the availability of a qualified person to answer questions, the right to withdraw consent to the testing process at any time, the right to anonymity to the extent provided by law with respect to participation in the test and disclosure of test results, and the right to confidential treatment of information identifying the subject of the test and the results of the test, to the extent provided by law.
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Pre-test information may be provided in writing, verbally, or by video, electronic, or other means and may be provided as designated by the supervising health care professional or the health facility.
For the purposes of this definition, a qualified person to answer questions is a health care professional or, when acting under the supervision of a health care professional, a registered nurse, medical assistant, or other person determined to be sufficiently knowledgeable about HIV testing, its purpose, potential uses, limitations, the meaning of the test results, and the testing procedures in the professional judgment of a supervising health care professional or as designated by a health care facility.
(x) "Protected health information" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 160.103.
(y) "Research" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 164.501.
(z) "State agency" means an instrumentality of the State of Illinois and any instrumentality of another state that, pursuant to applicable law or a written undertaking with an instrumentality of the State of Illinois, is bound to protect the privacy of HIV-related information of Illinois persons.
(aa) "Test" or "HIV test" means a test to determine the presence of the
antibody or antigen to HIV, or of HIV infection.
(bb) "Treatment" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 164.501.
(cc) "Use" has the meaning ascribed to it under HIPAA, as specified in 45 CFR 160.103, where context dictates.
(Source: P.A. 103-508, eff. 8-4-23.)
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(410 ILCS 305/7) (from Ch. 111 1/2, par. 7307) Sec. 7. (a) Notwithstanding the provisions of Sections 4, 5
and 6 of this Act, informed consent is not required for a health
care provider or health facility to perform a test when the health care
provider or health facility procures, processes, distributes or uses a
human body part donated for a purpose specified under the Illinois
Anatomical Gift Act, or semen provided prior to the effective date of this
Act for the purpose of artificial insemination, and such a test is
necessary to assure medical acceptability of such gift or semen for the
purposes intended.
(b) Informed consent is not required for a health care
provider or health facility to perform a test when a health care provider
or employee of a health facility, or a firefighter or an EMR, EMT, EMT-I, A-EMT, paramedic, or PHRN,
is involved in an accidental direct skin or mucous membrane contact with
the blood or bodily fluids of an individual which is of a nature that may
transmit HIV, as determined by a physician in his medical judgment. Should
such test prove to be positive, the patient and the health care provider,
health facility employee, firefighter, EMR, EMT, EMT-I, A-EMT, paramedic, or PHRN shall be
provided appropriate counseling consistent with this Act.
(c) Informed consent is not required for a health care
provider or health facility to perform a test when a law enforcement
officer is involved in the line of duty in a direct skin or mucous membrane
contact with the blood or bodily fluids of an individual which is of a
nature that may transmit HIV, as determined by a physician in his medical
judgment. Should such test prove to be positive, the patient shall be
provided appropriate counseling consistent with this Act. For purposes of
this subsection (c), "law enforcement officer" means any person employed by
the State, a county or a municipality as a policeman, peace officer,
auxiliary policeman, correctional officer or in some like position
involving the enforcement of the law and protection of the public interest
at the risk of that person's life.
(Source: P.A. 98-973, eff. 8-15-14.)
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(410 ILCS 305/9) (from Ch. 111 1/2, par. 7309)
Sec. 9. (1) No person may disclose or be compelled to disclose HIV-related information, except to the following persons:
(a) The subject of an HIV test or the subject's |
| legally authorized representative. A physician may notify the spouse or civil union partner of the test subject, if the test result is positive and has been confirmed pursuant to rules adopted by the Department, provided that the physician has first sought unsuccessfully to persuade the patient to notify the spouse or civil union partner or that, a reasonable time after the patient has agreed to make the notification, the physician has reason to believe that the patient has not provided the notification. This paragraph shall not create a duty or obligation under which a physician must notify the spouse or civil union partner of the test results, nor shall such duty or obligation be implied. No civil liability or criminal sanction under this Act shall be imposed for any disclosure or non-disclosure of a test result to a spouse or civil union partner by a physician acting in good faith under this paragraph. For the purpose of any proceedings, civil or criminal, the good faith of any physician acting under this paragraph shall be presumed.
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(b) Any person designated in a legally effective
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| authorization for release of the HIV-related information executed by the subject of the HIV-related information or the subject's legally authorized representative.
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(c) An authorized agent or employee of a health
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| facility or health care provider if the health facility or health care provider itself is authorized to obtain the test results, the agent or employee provides patient care or handles or processes specimens of body fluids or tissues, and the agent or employee has a need to know such information.
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(d) The Department and local health authorities
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| serving a population of over 1,000,000 residents or other local health authorities as designated by the Department, in accordance with rules for reporting, preventing, and controlling the spread of disease and the conduct of public health surveillance, public health investigations, and public health interventions, as otherwise provided by State law. The Department, local health authorities, and authorized representatives shall not disclose HIV test results and HIV-related information, publicly or in any action of any kind in any court or before any tribunal, board, or agency. HIV test results and HIV-related information shall be protected from disclosure in accordance with the provisions of Sections 8-2101 through 8-2105 of the Code of Civil Procedure.
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(e) A health facility, health care provider, or
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| health care professional which procures, processes, distributes or uses: (i) a human body part from a deceased person with respect to medical information regarding that person; or (ii) semen provided prior to the effective date of this Act for the purpose of artificial insemination.
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(f) Health facility staff committees for the purposes
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| of conducting program monitoring, program evaluation or service reviews.
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(f-5) (Blank).
(g) (Blank).
(h) Any health care provider, health care
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| professional, or employee of a health facility, and any firefighter or EMR, EMT, A-EMT, paramedic, PHRN, or EMT-I, involved in an accidental direct skin or mucous membrane contact with the blood or bodily fluids of an individual which is of a nature that may transmit HIV, as determined by a physician in his medical judgment.
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(i) Any law enforcement officer, as defined in
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| subsection (c) of Section 7, involved in the line of duty in a direct skin or mucous membrane contact with the blood or bodily fluids of an individual which is of a nature that may transmit HIV, as determined by a physician in his medical judgment.
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(j) A temporary caretaker of a child taken into
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| temporary protective custody by the Department of Children and Family Services pursuant to Section 5 of the Abused and Neglected Child Reporting Act, as now or hereafter amended.
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(k) In the case of a minor under 18 years of age
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| whose test result is positive and has been confirmed pursuant to rules adopted by the Department, the health care professional who ordered the test shall make a reasonable effort to notify the minor's parent or legal guardian if, in the professional judgment of the health care professional, notification would be in the best interest of the child and the health care professional has first sought unsuccessfully to persuade the minor to notify the parent or legal guardian or a reasonable time after the minor has agreed to notify the parent or legal guardian, the health care professional has reason to believe that the minor has not made the notification. This subsection shall not create a duty or obligation under which a health care professional must notify the minor's parent or legal guardian of the test results, nor shall a duty or obligation be implied. No civil liability or criminal sanction under this Act shall be imposed for any notification or non-notification of a minor's test result by a health care professional acting in good faith under this subsection. For the purpose of any proceeding, civil or criminal, the good faith of any health care professional acting under this subsection shall be presumed.
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(2) All information and records held by a State agency, local health authority, or health oversight agency pertaining to HIV-related information shall be strictly confidential and exempt from copying and inspection under the Freedom of Information Act. The information and records shall not be released or made public by the State agency, local health authority, or health oversight agency, shall not be admissible as evidence nor discoverable in any action of any kind in any court or before any tribunal, board, agency, or person, and shall be treated in the same manner as the information and those records subject to the provisions of Part 21 of Article VIII of the Code of Civil Procedure, except under the following circumstances:
(A) when made with the written consent of all persons
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| to whom the information pertains; or
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(B) when authorized by Section 5-4-3 of the Unified
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Disclosure shall be limited to those who have a need to know the information, and no additional disclosures may be made.
(Source: P.A. 102-168, eff. 7-27-21.)
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(410 ILCS 305/9.1) Sec. 9.1. Uses and disclosures for treatment, payment, and health care operations. Notwithstanding Sections 9 and 10 of this Act, a covered entity may, without a patient's consent: (1) use or disclose HIV-related information for its |
| own treatment, payment, or health care operations;
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(2) disclose HIV-related information for treatment
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| activities of a health care provider or health care professional;
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(3) disclose HIV-related information to another
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| covered entity or health care provider or health care professional for the payment activities of the entity that receives the information;
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(4) disclose HIV-related information to another
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| covered entity for health care operations activities of the entity that receives the information, if each entity has or had a relationship with the individual who is the subject of the HIV-related information being requested, the HIV-related information pertains to such relationship, and the disclosure is for the purpose of (A) conducting quality assessment and improvement activities, including outcomes evaluation and development of clinical guidelines, provided that the obtaining of generalizable knowledge is not the primary purpose of any studies resulting from such activities; patient safety activities; population-based activities relating to improving health or reducing health care costs, protocol development, case management, and care coordination, contacting of health care providers and patients with information about treatment alternatives; and related functions that do not include treatment; (B) reviewing the competence or qualifications of health care professionals or health care providers, evaluating practitioner and provider performance, health plan performance, conducting training programs in which students, trainees, or practitioners in areas of health care learn under supervision to practice or improve their skills as health care providers, training of non-health care professionals, accreditation, certification, licensing, or credentialing activities; or (C) health care fraud and abuse detection or compliance; and
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(5) disclose HIV-related information to other
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| participants in an organized health care arrangement in which the covered entity is also a participant for any health care operations activities of the organized health care arrangement.
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(Source: P.A. 98-1046, eff. 1-1-15.)
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(410 ILCS 305/9.8) Sec. 9.8. Disclosure of limited data sets and de-identified information. Notwithstanding the provisions of Sections 9 and 10 of this Act: (1) a covered entity may, without a patient's |
| consent, create, use, and disclose a limited data set using HIV-related information from a patient's record or disclose HIV-related information from a patient's record to a business associate for the purpose of establishing a limited data set; the creation, use, and disclosure of such a limited data set must comply with the requirements set forth under HIPAA;
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(2) a covered entity may, without a patient's
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| consent, create, use, and disclose de-identified information using information from a patient's record that is subject to this Act or disclose HIV-related information from a patient's record to a business associate for the purpose of de-identifying the information; the creation, use, and disclosure of such de-identified data must comply with the requirements set forth under HIPAA. A covered entity or a business associate may disclose information that is de-identified; and
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(3) the recipient of de-identified information shall
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| not re-identify de-identified information using any public or private data source.
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(Source: P.A. 98-1046, eff. 1-1-15.)
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