Chapter 10. HIV and Hepatitis C Testing of Persons Accused or Convicted, or Both, of Certain Crimes
Regulation .01 Scope.LinkCopy Citation
This chapter establishes procedures for HIV and hepatitis C testing ordered under the provisions of Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“County” means Baltimore City or a Maryland county.
(2)
“Department” means the Maryland Department of Health.
(3)
Exposure.
(a)
“Exposure” means one of the following:
(i)
Percutaneous contact of a victim with blood or body fluids of an offender;
(ii)
Mucocutaneous contact of a victim with blood or body fluids of an offender;
(iii)
Open wound, including dermatitis, exudative lesions, or chapped skin, contact of a victim with blood or body fluids of an offender for a prolonged period; or
(iv)
Intact skin contact of a victim with large amounts of blood or body fluids of an offender for a prolonged period.
(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 the health officer of a county.
(5)
“HIV” means a human immunodeficiency virus that causes acquired immune deficiency syndrome.
(6)
“Intact skin contact of a victim with large amounts of blood or body fluids of an offender for a prolonged period” means that a large volume of blood or bloody body fluid of an offender has been in direct contact with unbroken skin of a victim for at least 60 minutes.
(7)
“Local health department” means the official public health agency in Baltimore City or a Maryland county.
(8)
“Mucocutaneous contact of a victim with blood or body fluids of an offender” means that blood or bloody body fluid of an offender has splashed into the eye, mouth, or nose of a victim.
(9)
“Offender” means one of the following:
(a)
An individual convicted of an offense and ordered by a court to furnish a sample to be tested for the presence of HIV or hepatitis C under 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 sample to be tested for the presence of HIV or hepatitis C under 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 sample to be tested for the presence of HIV or hepatitis C under Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
(10)
“Offense” means any criminal offense or delinquent act the commission of which may have caused or resulted in an exposure.
(11)
“Open wound contact of a victim with blood or body fluids of an offender for a prolonged period” means that blood or bloody body fluid of an offender has contacted an already existing open wound, sore, or chapped or non-intact skin of a victim for at least 5 minutes.
(12)
“Percutaneous contact of a victim with blood or body fluids of an offender” means that a sharp object has penetrated the skin of a victim and allowed the blood or bloody body fluid of an offender to enter the victim's body.
(13)
Residence.
(a)
“Residence” means the location where an individual normally resides.
(b)
“Residence” includes a facility where an offender is incarcerated, operated by the Department of Public Safety and Correctional Services or a Maryland county.
(14)
“Secretary” means the Secretary of Health.
(15)
Victim.
(a)
“Victim” means an individual, other than the offender, injured during the commission of an offense.
(b)
“Victim” includes the:
(i)
Parent of a victim who is a minor;
(ii)
Legal guardian of a victim;
(iii)
Individual authorized to give surrogate consent for the victim under Health-General Article, §5-605, Annotated Code of Maryland; and
(iv)
Victim as defined by Criminal Procedure Article, §11-107(f), Annotated Code of Maryland.
Regulation .03 Notice.LinkCopy Citation
A.
The 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.
The State's Attorney shall include all of the following in the written notice:
(1)
The name of the offender to be tested;
(2)
The address of the offender's residence;
(3)
The name of the victim who has requested information; and
(4)
The address of the victim's residence.
C.
If the current residence of the offender is outside of the county or counties served by the health officer who receives the notification described in §A of this regulation, the health officer shall:
(1)
Send a copy of the written notice and a copy of the court order for testing to the health officer of the county in which the offender resides; and
(2)
Request the assistance of the health officer of the county in which the offender resides in carrying out the requirements of this chapter.
D.
If the current residence of the victim is in Maryland but outside of the county or counties served by the health officer who receives the notification described in §A of this regulation, the health officer shall:
(1)
Send a copy of the written notice and a copy of the court order for testing to the health officer of the county where the victim resides; and
(2)
Request assistance with carrying out the requirements of this chapter.
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 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)
Contact the state health department in the state where the victim resides; or
(b)
Contact the local health department notified under §A of this regulation.
Regulation .04 Responsibility.LinkCopy Citation
A.
The health officer of the county in which the offender currently resides shall assume responsibility for carrying out the activities described in Regulation .05 of this chapter.
B.
The health officer of the county in which the victim currently resides shall assume responsibility for carrying out the activities described in Regulation .06 of this chapter.
C.
If the current residence of the victim is outside of Maryland, the health officer notified under Regulation .03A of this chapter shall assume responsibility for carrying out the activities described in Regulation .06 of this chapter.
Regulation .05 Testing of Offender.LinkCopy Citation
A.
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.
(2)
If the offender is incarcerated in a facility under the jurisdiction of the Department of Public Safety and Correctional Services, HIV and hepatitis C testing of the offender may be performed by an employee or contractor of either the:
(a)
Local health department; or
(b)
Department of Public Safety and Correctional Services.
(3)
If the offender is incarcerated in a facility under the jurisdiction of the county, HIV and hepatitis C testing may be performed by an employee or contractor of either the:
(a)
Local health department; or
(b)
County.
(4)
If the offender is not incarcerated, an employee or contractor of the local health department shall perform 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)
That the offender has been scheduled for a test at a specified date, time, and place.
C.
The health officer or designee shall do all of the following:
(1)
Conduct a face-to-face discussion with the offender before a sample is collected for an HIV or hepatitis C test;
(2)
Include all of the topics described in COMAR 10.18.08.06 regarding the offender’s HIV test in the discussion; and
(3)
Sign a form indicating that the health officer or designee offered information to the offender on the HIV or hepatitis C test.
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 Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
(2)
The health officer may not use a sample taken for another purpose instead of obtaining a sample in order to conduct an HIV or hepatitis C test required under Criminal Procedure Article, §§11-107—11-117, Annotated Code of Maryland.
(3)
The health officer or designee shall:
(a)
Obtain a sample from the offender;
(b)
Put the code “RP” on the blood sample and the test order; and
(c)
Send the sample to the Laboratories Administration within the Department for an HIV or hepatitis C test.
E.
Upon receipt of the test result of the offender, the health officer or designee shall:
(1)
Discuss the result with the offender; or
(2)
Transmit the test result to the individual designated by the health officer to provide post-test information, including the topics listed in COMAR 10.18.08 that are applicable to the HIV test result.
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 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 and post-test information, is completed;
(2)
An offender refuses to allow a sample to be taken for testing;
(3)
An offender ordered by the court to make restitution for expenses incurred by the Department refuses to pay the required amount; or
(4)
An offender who is not incarcerated fails to appear for HIV or hepatitis C testing.
Regulation .06 Information for the Victim.LinkCopy Citation
A.
The health officer or designee shall provide the victim with information addressing all of the following:
(1)
An explanation of HIV, 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;
(5)
The advisability of the victim starting post-exposure prophylaxis prior to receiving test results; and
(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 shall offer, provide, or arrange for appropriate HIV or hepatitis C services, including referral for appropriate health care and support services, for the victim.
C.
If the HIV test result of the offender is indeterminate, the health officer or designee of the health officer shall inform the victim about the advisability of requesting the court to order a second HIV test 8 to 12 weeks after the first test to determine whether the test result has changed.
D.
The health officer or designee 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.
Regulation .07 Confidentiality.LinkCopy Citation
A.
Local Health Department Records. The local health department shall maintain separate confidential records of information and test results given to an offender required under the provisions of 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(6) of this chapter and as otherwise provided by law, the health officer or designee may not disclose the HIV or hepatitis C result of the offender.
(2)
The health officer or designee 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.
Disclosure by Victim. The victim may not disclose the offender's test result to any individual unless the disclosure is necessary to protect the health and safety of:
(1)
The victim;
(2)
The victim's sexual partner; or
(3)
The victim's family.
D.
Redisclosure. 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)
The victim;
(2)
The victim's sexual partner; or
(3)
The victim's family.
Chapter annotations
Authority: Criminal Procedure Article §§11-107—11-117, Annotated Code of Maryland
History: Effective date: December 20, 1993 (20:25 Md. R. 1948)
History: Regulation .01 amended effective May 7, 2018 (45:9 Md. R. 462)
History: Regulation .02B amended effective May 7, 2018 (45:9 Md. R. 462)
History: Regulation .03A, E amended effective May 7, 2018 (45:9 Md. R. 462)
History: Regulation .05 amended effective May 7, 2018 (45:9 Md. R. 462)
History: Regulation .06 amended effective May 7, 2018 (45:9 Md. R. 462)
History: Regulation .07 amended effective May 7, 2018 (45:9 Md. R. 462)