Process of HIV Testing of Offenders

Overview of Nevada’s Process of HIV Testing of Offenders

With approximately 9,194 people in Nevada reported to be living with HIV, one concern is how to deal with HIV, specifically in inmate populations, where certain incidents may increase the chance of exposure to HIV.  Any instance where someone may encounter the fluids of someone who is HIV-positive, whether it be jail personnel or other inmates, requires protocol for dealing with these situations.

The last reported numbers for HIV-affected individuals among Nevada prisoners was in 2012, which showed that 115 prisoners in the custody of state and federal correctional authorities in Nevada were affected with HIV.  Nevada law provides for a protocol for dealing with inmates who may have been exposed to HIV, and who are deemed to be HIV-positive.

HIV-Specific Criminal Laws

The Law Regarding HIV Testing of Offenders in Nevada

The process for the testing HIV testing of Nevada offenders who are incarcerated is outlined in Nev. Rev. Stat. § 209.385.  It provides that committed offenders will be tested for HIV after any incident in which the offender may have been exposed to the virus.  Along with administration of the appropriate tests, the offender must undergo HIV counseling.  If the results of the test are positive, then the offender must undergo supplemental testing and the offender’s name may be disclosed to certain Department of Corrections personnel.  In certain situations, an HIV-positive offender will be segregated from other HIV-negative offenders.

The specific statutory language of Nev. Rev. Stat. § 209.385 reads:

• Each offender committed to the custody of the Department for imprisonment shall submit to such initial tests as the Director determines appropriate to detect exposure to the human immunodeficiency virus. Each such test must be approved by regulation of the State Board of Health. At the time the offender is committed to custody and after an incident involving the offender:
  • The appropriate approved tests must be administered; and
  • (b) The Offender must receive counseling regarding the virus.
• If the results of an initial test are positive, the offender shall submit to such supplemental tests as the Medical Director determines appropriate. Each such test must be approved for the purpose by regulation of the State Board of Health.
• If the results of a supplemental test are positive, the name of the offender may be disclosed to:
  • (a) The Director;
  • The administrative officers of the Department who are responsible for the classification and medical treatment of offenders;
  • (c) The manager or warden of the facility or institution at which the offender is confined; and
  • Any other employee of the Department whose normal duties involve the employee with the offender or require the employee to come into contact with the blood or bodily fluids of the offender.
• The offender must be segregated from every other offender whose test results are negative if:
  • The results of a supplemental test are positive; and
  • The offender engages in behavior that increases the risk of transmitting the virus as determined by regulation of the Department.
• The Director, with the approval of the Board:
  • Shall establish for inmates and employees of the Department an educational program regarding the virus whose curriculum is provided by the Division of Public and Behavioral Health of the Department of Health and Human Services.  A person who provides instruction for this program must be certified to do so by the Division.
  • May adopt such regulations as are necessary to carry out the provisions of this section.
• As used in this section, “incident” means an occurrence, of a kind specified by regulation of the State Board of Health or the Department, that entails a significant risk of exposure to the human immunodeficiency virus.