歧视

其他与艾滋病毒相关的法律（跳至章节)

测试与隐私（跳至章节)

HIV/AIDS | Discrimination | Rhode Island 

What laws protect people with HIV from discrimination in Rhode Island?

Rhode Island has enacted two separate laws that prohibit discrimination against people with HIV or AIDS.

• First, Rhode Island has an anti-discrimination law that explicitly relates to HIV. This law provides that “[n]o person, agency, organization, or legal entity may discriminate against an individual on the basis of a positive HIV test result, or perception of a positive test, in housing, education, employment, the granting of credit, public accommodation, or delivery of services. . .” (RI ST 23-6.3-11)
• Second, people with HIV are protected under laws that prohibit discrimination on the basis of disability. This includes the federal Americans with Disabilities Act (ADA), and analogous Rhode Island disability & antidiscrimination laws. (42 U.S.C. § 12101)

Disability antidiscrimination laws protect people with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness. They also protect people who are regarded or perceived as having HIV.

Under the ADA, but not Rhode Island law, these laws also prohibit discrimination against a person who does not have HIV, but who “associates” with a person with HIV— such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of persons with HIV.

1973 年《康复法案》禁止在联邦机构实施的项目、接受联邦财政援助的项目、联邦就业和联邦承包商的就业实践中基于残疾进行歧视。

For more information about employment discrimination in Rhode Island, see: Discrimination | Employment | Rhode Island

What do these anti-discrimination laws prohibit in employment?

雇主不得仅仅因为申请人或雇员患有艾滋病毒或艾滋病等残疾而对其采取不利行动。这意味着雇主不得基于申请人感染艾滋病毒或患有艾滋病而解雇、拒绝雇用、重新雇用或晋升，或在雇佣条款或条件上进行其他歧视。

这里的重点是艾滋病患者或艾滋病毒感染者是否与类似情况下的其他申请人或员工受到不同的待遇。

以下是非法歧视的例子：

• 雇主不得因担心艾滋病毒感染者会传染给其他员工或顾客而拒绝雇用该感染者。
• 雇主不得基于某人将来可能生病而无法胜任工作的可能性或概率而拒绝雇用或做出雇用决定。
• 雇主不能因为这会增加健康或工人赔偿保险费而拒绝雇用某人。

Can an employer in Rhode Island ever require an applicant or employee to take an HIV test?

Under Rhode Island law, an HIV test shall not be required as a condition of employment (RI ST 23-6.3-11).

在申请和面试过程中，雇主可能会询问员工的哪些健康状况？

Under the ADA and Rhode Island law (42 U.S.C. 12112; RI ST 28-5-7(4)(i)), prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:

• 您曾经住院或接受过医生的护理吗？
• 您是否曾经领取过工伤赔偿或残疾福利？
• 你吃什么药？
• An employer may, however, ask whether an applicant has the knowledge, skill and ability to perform the job functions.

雇主发出录用通知后，可以要求求职者进行体检吗？有哪些适用的准则？

After a conditional offer of employment, an employer may require a physical examination or medical history solely for the purpose of determining if an employee can perform the essential job functions with reasonable accommodation. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation. The same medical inquiries must be made of each person in the same job category.  In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections.

法院如何处理人们对执行侵入性手术的医疗保健人员（如外科医生）会将艾滋病毒传播给患者的担忧？

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have
addressed this issue under the ADA have upheld such terminations. The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• 风险的性质、持续时间和严重程度；
• 风险的概率；以及
• 是否可以通过合理的安排消除风险。

However, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach: “We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation. Thus, even if Dr. Doe takes extra precautions… some measure of risk will always exist…” (Doe v. University of Maryland Medical Systems Corporation, 50 F.3d 1261 (1995)).

值得注意的是，只有少数法院审理过HIV阳性医护人员的权利。艾滋病法律项目认为，这些案件的判决存在错误，与国会通过《美国残疾人法案》（ADA）的初衷相悖。由于该领域的法律尚不明确，任何可能面临就业歧视的医护人员都应该咨询律师或公共卫生倡导者。

Assessing Discrimination in Employment

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem:

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.

2. In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:

• 雇主知道或得知您是艾滋病毒阳性或患有艾滋病；
• 无论是否有合理的便利条件，您都具备履行该工作基本职责的资格；并且
• 由于您的 HIV 或艾滋病状况而对您采取了不利措施，并且雇主给出的不利措施借口是虚假的。

3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?

4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:

• 处于类似情况的其他员工是否受到了不同的待遇或相同的待遇？
• 您的雇主是否遵守了其人事政策？
• 雇主得知您的艾滋病毒状况后不久就开始对您进行不利的待遇了吗？
• 您是否曾因病缺勤过一段时间，并且返回工作岗位后是否开始受到不良治疗？
• 你的雇主对此事的描述是怎样的？你该如何证明雇主的说法是错误的？

5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:

• 该公司如何运作？实际的住宿安排如何？
• 站在主管的角度想想，对于你提出的合理安排，主管可能会提出哪些异议？例如，如果你需要在某个时间离开去看医生，谁来接替你的工作？

哪些法律禁止住房歧视？

It is illegal under Rhode Island’s HIV-specific antidiscrimination law (RI ST 23-6.3-11), Rhode Island’s disability antidiscrimination law (RI ST 34-37-4), as well as the National Fair Housing Amendments of 1989 (42 U.S.C. §§ 3601-3619), to discriminate in the sale or rental of housing on the basis of HIV status. A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

For more information about housing discrimination in Rhode Island, see: Discrimination| Housing | Rhode Island

Are there any exceptions to the housing laws?

There are no exceptions to housing discrimination on the basis of HIV status under Rhode Island’s HIV-specific law (RI ST 23-6.3-11). Rhode Island’s disability antidiscrimination law exempts residences where there are three or fewer apartments and the owner occupies one of the units (RI ST 34-37-4). In addition, the federal Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members (42 U.S.C. § 3604).

Do Rhode Island’s laws protect against discrimination by health care providers, businesses, and other public places?

Yes, under Rhode Island’s HIV-specific antidiscrimination statute (RI ST 23-6.3-11), Rhode Island’s disability antidiscrimination law (RI ST 11-24-2), as well as the ADA (42 U.S.C. § 12182), it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public.

因此，艾滋病毒感染者在几乎所有公共场所或企业都受到保护，免受歧视，包括酒吧、餐馆、酒店、商店、学校、职业或其他教育项目、出租车、公共汽车、飞机和其他交通工具、健身俱乐部、医院以及医疗和牙科诊所，只要这些设施通常向公众开放。

For more information about public accommodations discrimination in Rhode Island, see Discrimination | Public Accommodations | Rhode Island

医疗保健专业人员对艾滋病毒感染者的歧视是否仍然是一个问题？

Believe it or not, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

歧视艾滋病毒感染者的医生会提出哪些类型的论点？这些论点是否合理？

医生通常试图用以下两个论点之一来证明对艾滋病毒感染者的歧视是合理的：

1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and

2. “Treating People with HIV Requires Special Expertise” (Some doctors referpatients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV). Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Rhode Island law.

法院和医学专家对这些论点作何反应？

Courts have responded to these arguments in the following ways:

1. “Treating People with HIV is Dangerous.”

Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needlesticks or other exposures to blood. However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.

For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott (524 U.S. 624 (1998)) that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.

除了法律层面，美国医学会、美国牙科协会以及许多其他专业医疗保健组织都发布政策，认为拒绝为艾滋病毒感染者提供治疗是不道德的。

2. “Treating People with HIV Requires Special Expertise”

在这些情况下，歧视索赔的是非曲直取决于基于客观医学证据，患者所需的服务或治疗是否需要转诊给专科医生，或者是否属于服务提供者的服务和能力范围。

In United States v. Morvant (898 F.Supp. 1157 (E.D. La 1995)), a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care. The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.

《美国残疾人法案》中有哪些具体条款禁止医疗保健提供者歧视？

Under Title III of the ADA, it is illegal for a health care provider to:

1. 剥夺艾滋病病毒感染者“充分、平等地享受”医疗服务的权利，或者剥夺艾滋病病毒感染者与其他患者一样“受益”医疗服务的机会。
2. 建立接受医疗服务的“资格标准”，往往会筛选出艾滋病毒检测呈阳性的患者。
3. 为艾滋病病毒阳性患者提供“不同或单独”的服务，或未能在“最综合的环境中”为患者提供服务。
4. 拒绝向已知与艾滋病毒感染者有“关系”或“交往”的人（如配偶、伴侣、子女或朋友）提供平等的医疗服务。

哪些具体的医疗保健行为构成对艾滋病毒感染者的非法歧视？

将上述 ADA 的具体规定应用于医疗保健实践，以下做法是违法的：

• 医疗保健提供者不能因为认为存在艾滋病毒传播风险或只是因为医生不愿意治疗艾滋病毒感染者而拒绝治疗艾滋病毒感染者。
• 医疗保健提供者不能仅仅因为患者感染了艾滋病毒就同意仅在医生常规办公室以外的治疗环境（例如专科医院诊所）中为患者进行治疗。
• 除非所需治疗超出医生的常规执业范围或专业范围，否则医疗保健提供者不得将 HIV 阳性患者转诊至其他诊所或专科医生。ADA 要求 HIV 阳性患者的转诊应与其他患者的转诊相同。但是，如果患者的 HIV 相关疾病超出了医疗服务提供者的执业能力或服务范围，则可以将患者转诊至专科护理机构。
• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions that tend to stigmatize a patient simply on the basis of HIV status.
• 医疗保健提供者不能限制治疗艾滋病毒阳性患者的预定时间，例如坚持要求艾滋病毒阳性患者在一天结束时来就诊。

What laws prohibit discrimination in credit?

It is illegal under Rhode Island’s HIV-specific antidiscrimination law (RI ST 23-6.3-11) and Rhode Island’s disability antidiscrimination law (RI ST 34-37-4) to discriminate on the basis of HIV status in the granting of any form of credit or loan. Under the National Fair Housing Amendments of 1989 (42 U.S.C. §§ 3601-3619), it is illegal to discriminate on the basis of HIV status in the financing of housing.

For more information about credit and lending discrimination in Rhode Island, see https://www.gladlaw.org/overview/credit-lending-discrimination/rhode-island/

What laws prohibit discrimination in education?

It is illegal under Rhode Island’s HIV-specific antidiscrimination law (RI ST 23-6.3-11) and Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. § 794) to discriminate on the basis of HIV status in public school programs or activities.

根据联邦法律，针对歧视有哪些潜在的补救措施？

要根据《美国残疾人法案》提起就业歧视索赔，雇主必须至少拥有 15 名员工。申请人必须在歧视行为发生之日起 180 天内向平等就业机会委员会 (EEOC) 提出索赔。申请人可以从 EEOC 撤销 ADA 索赔，并向州法院或联邦法院提起诉讼。

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease). Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice. However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding.

为了根据《康复法》提出索赔，个人可以向联邦卫生与公众服务部地区办事处提出行政投诉和/或直接向法院提起诉讼。

根据《国家公平住房法》，如需就住房歧视提起索赔，个人可在违规行为发生后一年内向美国住房和城市发展部 (HUD) 提出投诉。个人也可在违规行为发生后两年内提起诉讼。无论个人是否已向 HUD 提出投诉，均可提起诉讼。

HIV/AIDS | Other HIV-Related Laws | Rhode Island

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a
disability

残疾人士（例如艾滋病毒/艾滋病患者）可能会遇到健康问题，导致其难以满足某些工作要求或职责。例如，他们可能会感到精疲力竭，难以全职工作。

在某些情况下，雇主有义务修改或调整工作要求或工作场所政策，以使残疾人士（例如艾滋病毒感染者或艾滋病患者）能够履行工作职责。这被称为“合理便利”。

合理便利的例子包括：

● Modifying or changing job tasks or responsibilities;
● Establishing a part-time or modified work schedule;
● Permitting time off during regular work hours for medical appointments;
● Reassigning an employee to a vacant job; or
● Making modifications to the physical layout of a job site or acquiring devices such
as a telephone amplifier to allow, for example, a person with a hearing
impairment to do the job.

员工可以申请的便利条件没有固定的设定。申请便利条件的性质将取决于每位员工的具体情况。

How may a person obtain a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability.  Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact the AIDS Law Project’s Legal InfoLine in order to strategize about ways to address any such requests.

雇主是否必须批准合理住宿请求？

An employer is not obligated to grant each and every request for an accommodation.  An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation).  In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

什么情况下，对员工而言“合理的便利”会成为对雇主而言“过度负担”？

在确定所要求的便利是否给雇主造成过度负担或困难时，法院会审查许多因素，其中包括：

● The employer’s size, budget, and financial constraints;
● The costs of implementing the requested accommodation; and
● How the accommodation affects or disrupts the employer’s business.

再次强调，我们会根据具体情况进行审查。

仅当员工因合理便利而具备履行基本工作职责的资格时，雇主才有义务提供合理便利。即使员工已获得合理便利，雇主也无需雇用或留用无法履行基本工作职责的员工。

Does Rhode Island have a law that criminalizes failure to disclose HIV status?

No, but in 2015 a bill was introduced in the Rhode Island Legislature, H 5245, An Act Related to Criminal Offenses – Criminal Transmission of HIV, that would have criminalized failure to disclose HIV status. GLAD testified against the bill, and it did not pass.

有关详细信息，请参阅：For more information, see: GLAD Testifies in Opposition to Proposed HIV
Criminalization Legislation in Rhode Island

Does Rhode Island law provide for access to clean needles for injection drug users to prevent HIV transmission?

Yes, under Rhode Island law, a pharmacy may sell hypodermic needles and syringes.  Possession of a hypodermic needle is no longer illegal in Rhode Island (RI ST 21-28-4.04).

Rhode Island law also mandates that the Department of Health maintain a program of needle and syringe exchange for persons 18 and older in order to prevent the transmission of HIV among intravenous drug users.  Any site used in the program shall make available educational materials, HIV counseling and testing, and referral services regarding HIV transmission and drug abuse prevention and treatment (RI ST 23-11-19).

HIV/AIDS | Testing & Privacy | Rhode Island

Does Rhode Island have a law governing informed consent for HIV testing?

Yes, while Rhode Island recently eliminated the requirement of written informed consent, Rhode Island prohibits the administration of any HIV test without: (1) providing the person with oral or written information and an opportunity for discussion with a health care provider, (2) informing the person of the right to decline testing, and (3) obtaining the oral consent (prior to the passage of House Bill 5415 Substitute B in November 2009, Rhode Island had required written consent for HIV testing) of the person (RI ST 23-6.3-3(h)(2)). The consent and exchange of information must be documented in the person’s medical record (Id). (Note: A distinction is made between confidential and anonymous testing.  In confidential testing the health care provider may use written consent as an option, but in anonymous testing only oral consent is allowed) (46 RI ST 23-6.3-3 (k)).

What information must the person receive?

Under RI ST 23-6.3-3(h)(4), the information given to the patient must, at a minimum, include the following:

1. An explanation of HIV infection;
2. A description of interventions to reduce HIV transmission;
3. What a positive and negative test result mean
4. The possibility that a recent infection may not be detected;
5. An opportunity to ask questions and to decline being tested.

Physicians and other health care providers are required to offer HIV testing to any person “with a suspected sexually transmitted disease” (RI ST 23-11-17).

医生可以在没有父母或监护人同意的情况下对未成年人进行艾滋病毒检测吗？

Yes, in Rhode Island, persons under 18 may give legal consent for testing, examination, and/or treatment for any reportable communicable disease, which under Rhode Island Department of Health guidelines includes HIV and AIDS (RI ST 23-8-1.1).

Are there unique requirements for the administration of HIV tests for pregnant women and newborns?

Rhode Island law provides that a physician or health care provider shall include HIV testing among the routine prenatal tests for all pregnant women unless testing is declined (RI ST 23-6.3-3 (i) (1)). In order to be tested for HIV, pregnant women must provide oral consent which must be documented in the medical record.  If a pregnant woman has not been tested for HIV, she will be offered testing again at the time of labor
and/or delivery (RI ST 23-6.3-3 (i) (2)). If the mother refuses all these offers for testing and if the mother also refuses to consent to the testing of the newborn, then the newborn can be tested without the mother’s consent (RI ST 23-6.3-3 (i) (3)). If the child’s HIV test is positive, then the mother will be told that she is also infected with HIV.

Are there HIV testing laws regarding life insurance?

A person applying for a life insurance policy can be required to undergo HIV testing provided written consent is obtained, and the results of the test can be used by the insurance company for making decisions about whether to issue a life insurance policy. However, once someone has a life insurance policy, HIV status cannot be used to
cancel or refuse to renew the policy (RI ST 23-6.3-16).

Are there circumstances under which Rhode Island law permits HIV testing, even against a person’s wishes?

Yes, under certain circumstances, enumerated in RI ST 23-6.3-4, Rhode Island law permits, but does not require, a physician or other health care provider to perform an HIV test without the consent of the subject.

A) Youth

Rhode Island law permits the involuntary HIV testing of:

• Any person under one year of age;
• Any person between one and thirteen years of age who “appears to be symptomatic for HIV”;
• Any person under the age of eighteen who is “under the care and authority of the department of children, youth, and families, and the director of that department certifies that an HIV test is necessary to secure health or human services for that individual.”

B) Occupational Exposure in a Healthcare Facility

Rhode Island law permits involuntary testing in the event of an exposure to a health care provider in a licensed health care facility or private physician’s office, if:

1. a sample of the patient’s blood is available and an occupational health
representative or physician, nurse practitioner, physician assistant, or nurse-
midwife not directly involved in the exposure determines that a healthcare worker
had a significant exposure to the blood or bodily fluids of a patient; and
2. the patient refuses to grant consent for an HIV test. The health care worker must
have a baseline HIV test within seventy-two hours of exposure before the
patient’s blood can be tested.
If a sample of the patient’s blood is not available and the patient refuses to consent to
an HIV test, the health care worker may petition the Superior Court for an order
mandating an HIV test.

C) Emergency

An involuntary HIV test is permitted “in an emergency, where due to a grave medical or psychiatric condition, it is impossible to obtain consent from either the patient, or the patient’s parent, guardian, or agent.”  This exception appears by its language to be limited to circumstances in which an HIV test is deemed necessary for the patient’s health.

Does Rhode Island law require mandatory testing under any circumstances?

Yes, Rhode Island law requires mandatory HIV testing under certain circumstances.

A) Rhode Island law requires an HIV test for any person convicted of:

1. Possession of any controlled substance that has been administered with a
hypodermic needle or syringe (RI ST 21-28-4.20);
2. “Violation of any provisions” of the commercial sex activity statute (RI ST 11-34.1-12); and
3. Committing “any sexual offense involving sexual penetration,” where “the victim,
immediate family members of the victim, or legal guardian of the victim” has
petitioned the court to order testing (RI ST 11-37-17).

B) Rhode Island law requires mandatory testing of “[e]very person who is committed to the adult correctional institutions to answer for any criminal offense, after conviction,” as well as “periodic testing for HIV, including testing at the time of release and when deemed appropriate by a physician” (RI ST 42-56-37 & RI ST 23-6.3-4(a)(11)).

C) Rhode Island law requires HIV testing of donated or collected sperm (RI ST 23-1-38).

What laws in Rhode Island protect the privacy of medical information, such as HIV?

In Rhode Island, there are multiple laws that protect the privacy of medical information such as HIV.  For example, under the HIV-Specific Privacy Law, it is “unlawful for any person to disclose to a third party the results of an individual’s HIV test without the prior written consent of that individual” (RI ST 23-6.3-4 (b) (emphasis added)), except for certain exemptions that are listed below. Other laws that protect privacy of medical information in various circumstances are discussed below.

What law protects the confidentiality of HIV test results that are recorded in patient files?

Rhode Island law also has a specific provision for protecting records of HIV test results, which states that: “Providers of healthcare, public health officials, and any other person who maintains records containing information on HIV test results of individuals are responsible for maintaining full confidentiality of this data and shall take appropriate steps for their protection” (RI ST 23-6.3-8(a)).

These steps include:

• Keeping records secure at all times and establishing adequate confidentiality safeguards for any such records electronically stored;
• Establishing and enforcing reasonable rules limiting access to these records; and
• Training persons who handle records in security objectives and techniques (RI ST 23-6.3-8).

Are there additional statutes that can protect the confidentiality of a person’s HIV positive test result?

Yes, Rhode Island law expressly prohibits the nonconsensual disclosure of confidential health care information, which is described as “all information relating to a patient’s health care history, diagnosis, condition, treatment, or evaluation obtained from a health care provider who has treated the patient.”  This law is referred to as the Confidentiality of Health Care Communications and Information Act (RI ST 5-37.3-3 (3) (i); RI ST 5-37.3-4 (a)).

Under this act, “confidential health care information” cannot be released or transferred without a written consent form containing clear information regarding the proposed uses of the information and the extent of information to be released (RI ST 5-37.3-4 (d)).

Are there circumstances under which Rhode Island law permits the disclosure of HIV status without written informed consent?

Yes, Rhode Island law provides for disclosure of HIV status under specifically prescribed circumstances (RI ST 23-6.3-7).

(A) A physician may without the consent of the patient:

• “[E]nter HIV test results in the patient’s medical record.”
• Release confidential medical information, including a patient’s HIV status,
  pursuant to the exceptions listed in the Confidentiality of Health Care
  Communications and Information Act (RI ST 5-37.3-4 (b)) and the Mental Health
  Law (RI ST 40.1-5-26 (b)).
• Notify the director of the department of children, youth, and families (DCYF) the
  results of an involuntary test (RI ST 23-6.3-7 (a) (3)).
• “Inform third parties with whom an HIV-infected patient is in close and continuous
  exposure-related contact, including but not limited to a spouse and/or partner, if
  the nature of the contact, in the physician’s opinion, poses a clear and present
  danger of HIV transmission to the third party; and if the physician has reason to
  believe that the patient, despite the physician’s strong encouragement, has not
  and will not inform the third party that they may have been exposed to HIV” (RI
  ST 23-6.3-10 (b)).

(B) Under RI ST 23-5-9, when a person dies with certain enumerated health conditions,
including AIDS, a physician or family member (if the person did not die in a healthcare
facility) must notify the person picking up the body that the person died of AIDS. The
person picking up the dead body must convey that notification to any embalmer or
funeral director (RI ST 23-5-9).

(C) If a first responder (e.g., firefighter, police officer, EMT) treating or transporting a
person to a licensed facility is exposed to the blood of a person subsequently
diagnosed with an infectious disease, and the exposure is sufficient to create a risk of
transmission, the facility shall issue notification of exposure (RI ST 23-28.36-3).

How can violations of the HIV privacy statutes be addressed?

Under Rhode Island law, a civil suit can be filed for damages (RI ST 5-37.3-9; (RI ST 23-6.3-8 (e)). An intentional and knowing violation of these statutes may also result in criminal prosecution (RI ST 5-37.3-9).

艾滋病毒感染者是否享有宪法赋予的隐私权？

许多法院裁定，个人享有宪法赋予的隐私权，有权不披露其艾滋病毒感染状况。法院依据美国宪法中的正当程序条款裁定了这项权利，该条款赋予了避免披露某些类型的个人信息的隐私利益。

只有当披露信息的人是国家或政府行为者（例如警察、监狱官员、州立医院的医生）时，才能主张宪法赋予的隐私权。

为了确定是否侵犯了隐私权，法院会权衡侵犯个人隐私的性质与政府制定披露政策或做法的合法理由。

Does Rhode Island have reporting laws that require positive HIV test results or AIDS to be reported to the Rhode Island Department of Health?

All states require that numerous health conditions be reported to state health officials in order to assess trends in the epidemiology of diseases and develop effective prevention strategies. Rhode Island law requires that physicians, health care providers, health care facilities and prisons report the names of persons diagnosed with HIV or AIDS (except in the case of anonymous testing) to the Department of Health (RI ST 23-6.3- 14), including those perinatally exposed to HIV as indicated by two positive PCR tests (RI ST 23-6.3-14 (4)).
All information in connection with HIV or AIDS cases is subject to strong confidentiality
provisions under Rhode Island law.