S T A T E O F N E W Y O R K
________________________________________________________________________
7892--A
2009-2010 Regular Sessions
I N A S S E M B L Y
April 28, 2009
___________
Introduced by M. of A. TOWNS, JEFFRIES, CLARK, CASTRO -- Multi-Sponsored
by -- M. of A. AMEDORE, BOYLAND, BURLING, COOK, CROUCH, REILLY -- read
once and referred to the Committee on Health -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee
AN ACT to amend the public health law, in relation to testing for the
human immunodeficiency virus
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 2781 of the public health law, as added by chapter
584 of the laws of 1988, paragraph (d) of subdivision 6 as added by
chapter 220 of the laws of 1996, and subdivision 7 as added by chapter
429 of the laws of 2005, is amended to read as follows:
S 2781. HIV related testing. 1. Except as provided in section three
thousand one hundred twenty-one of the civil practice law and rules, or
unless otherwise specifically authorized or required by a state or
federal law, no person shall order the performance of an HIV related
test without first receiving the [written,] informed consent of the
subject of the test who has capacity to consent or, when the subject
lacks capacity to consent, of a person authorized pursuant to law to
consent to health care for such individual. A physician or other person
authorized pursuant to law to order the performance of an HIV related
test shall certify, in the order for the performance of an HIV related
test, that informed consent [required by this section] has been received
prior to ordering such test by a laboratory or other facility EITHER
PURSUANT TO SUBDIVISION TWO OF THIS SECTION OR IN THE EVENT THAT THE
INFORMED CONSENT IS ORAL, SHALL DOCUMENT IN THE MEDICAL RECORD OF THE
INDIVIDUAL THAT INFORMED CONSENT HAS BEEN GIVEN. SUCH INFORMED CONSENT
SHALL BE IN WRITING AND SIGNED BY THE INDIVIDUAL IN THE EVENT THAT THE
PERSON ORDERING THE TEST IS ORDERING A RAPID HIV RELATED TEST AND DOES
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11322-03-9
A. 7892--A 2
NOT HAVE THE CAPACITY AT THE SITE OF SUCH RAPID TEST TO PERFORM OTHER
MEDICAL CARE.
2. [Informed consent to an HIV related test shall consist of a state-
ment signed by the subject of the test who has capacity to consent or,
when the subject lacks capacity to consent, by a person authorized
pursuant to law to consent to health care for the subject which includes
at least the following:
(a) an explanation of the test, including its purpose, the meaning of
its results, and the benefits of early diagnosis and medical inter-
vention; and
(b) an explanation of the procedures to be followed, including that
the test is voluntary, that consent may be withdrawn at any time, and a
statement advising the subject that anonymous testing is available; and
(c) an explanation of the confidentiality protections afforded confi-
dential HIV related information under this article, including the
circumstances under which and classes of persons to whom disclosure of
such information may be required, authorized or permitted under this
article or in accordance with other provisions of law or regulation.
3.] Prior to [the execution of a written] THE OBTAINING OF informed
consent, a person ordering the performance of an HIV related test shall
provide ORALLY OR IN WRITING to the subject of an HIV related test or,
if the subject lacks capacity to consent, to a person authorized pursu-
ant to law to consent to health care for the subject, an explanation of
[the nature of AIDS and HIV related illness, information about discrimi-
nation problems that disclosure of the test result could cause and legal
protections against such discrimination, and information about behavior
known to pose risks for transmission and contraction of HIV infection]
THE FACTS THAT HIV CAUSES AIDS, THAT THERE IS TREATMENT FOR HIV THAT CAN
HELP AN INDIVIDUAL STAY HEALTHY, THAT AN INDIVIDUAL WITH HIV OR AIDS CAN
PROTECT THE INDIVIDUALS AROUND HIM OR HER FROM BEING INFECTED, THAT THE
TEST IS VOLUNTARY, AND THAT THE RESULTS OF THE TEST WILL BE KEPT CONFI-
DENTIAL.
3. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, NOTHING SHALL
PROHIBIT A HEALTH CARE PROVIDER FROM COMBINING A FORM USED TO OBTAIN
INFORMED CONSENT FOR HIV RELATED TESTING WITH FORMS USED TO OBTAIN WRIT-
TEN CONSENT FOR GENERAL MEDICAL CARE OR ANY OTHER MEDICAL TEST OR PROCE-
DURE. WHERE A WRITTEN CONSENT TO HIV RELATED TESTING IS INCLUDED IN A
SIGNED GENERAL CONSENT TO MEDICAL CARE FOR THE SUBJECT OF THE TEST OR IN
A SIGNED CONSENT TO ANY HEALTH CARE SERVICE FOR THE SUBJECT OF THE TEST,
THE CONSENT FORM SHALL HAVE A CLEARLY MARKED PLACE ADJACENT TO THE
SIGNATURE WHERE THE SUBJECT OF THE TEST, OR WHEN THE SUBJECT LACKS
CAPACITY TO CONSENT, A PERSON AUTHORIZED PURSUANT TO LAW TO CONSENT TO
HEALTH CARE FOR SUCH INDIVIDUAL, SHALL BE GIVEN AN OPPORTUNITY TO
SPECIFICALLY DECLINE IN WRITING HIV RELATED TESTING ON SUCH GENERAL
CONSENT. AN INFORMED CONSENT FOR HIV RELATED TESTING PURSUANT TO THIS
SECTION SHALL BE VALID FOR SUCH TESTING UNTIL SUCH CONSENT IS REVOKED OR
EXPIRES BY ITS TERMS. EACH TIME THAT AN HIV RELATED TEST IS ORDERED
PURSUANT TO WRITTEN INFORMED CONSENT IN ACCORDANCE WITH THIS SECTION,
THE PHYSICIAN OR OTHER PERSON AUTHORIZED PURSUANT TO LAW TO ORDER THE
PERFORMANCE OF THE HIV RELATED TEST, OR SUCH PERSON'S REPRESENTATIVE,
SHALL ORALLY NOTIFY THE SUBJECT OF THE TEST OR, WHEN THE SUBJECT LACKS
CAPACITY TO CONSENT, A PERSON AUTHORIZED PURSUANT TO LAW TO CONSENT TO
HEALTH CARE FOR SUCH INDIVIDUAL, THAT AN HIV RELATED TEST WILL BE
CONDUCTED AT SUCH TIME, AND SHALL NOTE THE NOTIFICATION IN THE PATIENT'S
RECORD.
A. 7892--A 3
4. A person authorized pursuant to law to order the performance of an
HIV related test shall provide DIRECTLY OR THROUGH A REPRESENTATIVE to
the person seeking such test an opportunity to remain anonymous and to
provide written, informed consent through use of a coded system with no
linking of individual identity to the test request or results. A health
care provider who is not authorized by the commissioner to provide HIV
related tests on an anonymous basis shall refer a person who requests an
anonymous test to a test site which does provide anonymous testing. The
provisions of this subdivision shall not apply to a health care provider
ordering the performance of an HIV related test on an individual
proposed for insurance coverage.
5. At the time of communicating the test result to the subject of the
test, a person ordering the performance of an HIV related test shall,
DIRECTLY OR THROUGH A REPRESENTATIVE IN THE CASE OF A TEST INDICATING
EVIDENCE OF HIV INFECTION, provide the subject of the test or, if the
subject lacks capacity to consent, the person authorized pursuant to law
to consent to health care for the subject, with counseling or referrals
for counseling: (a) for coping with the emotional consequences of
learning the result; (b) regarding the discrimination problems that
disclosure of the result could cause; (c) for behavior change to prevent
transmission or contraction of HIV infection; (d) to inform such person
of available medical treatments; and (e) regarding the [test subject's]
need to notify his or her contacts.
5-A. WITH THE CONSENT OF THE SUBJECT OF A TEST INDICATING EVIDENCE OF
HIV INFECTION OR, IF THE SUBJECT LACKS CAPACITY TO CONSENT, WITH THE
CONSENT OF THE PERSON AUTHORIZED PURSUANT TO LAW TO CONSENT TO HEALTH
CARE FOR THE SUBJECT, THE PERSON WHO ORDERED THE PERFORMANCE OF THE HIV
RELATED TEST, OR SUCH PERSON'S REPRESENTATIVE, SHALL PROMPTLY PROVIDE OR
ARRANGE WITH A HEALTH CARE PROVIDER FOR AN APPOINTMENT FOR FOLLOW-UP
MEDICAL CARE FOR HIV FOR SUCH SUBJECT.
6. The provisions of this section shall not apply to the performance
of an HIV related test:
(a) by a health care provider or health facility in relation to the
procuring, processing, distributing or use of a human body or a human
body part, including organs, tissues, eyes, bones, arteries, blood,
semen, or other body fluids, for use in medical research or therapy, or
for transplantation to individuals provided, however, that where the
test results are communicated to the subject, post-test counseling, as
described in subdivision five of this section, shall nonetheless be
required; or
(b) for the purpose of research if the testing is performed in a
manner by which the identity of the test subject is not known and may
not be retrieved by the researcher; or
(c) on a deceased person, when such test is conducted to determine the
cause of death or for epidemiological purposes[.]; OR
(d) conducted pursuant to section twenty-five hundred-f of this chap-
ter[.]; OR
(E) IN SITUATIONS INVOLVING OCCUPATIONAL EXPOSURES WHICH CREATE A
SIGNIFICANT RISK OF CONTRACTING OR TRANSMITTING HIV INFECTION, AS
DEFINED IN REGULATIONS OF THE DEPARTMENT AND PURSUANT TO PROTOCOLS
ADOPTED BY THE DEPARTMENT, (I) PROVIDED THAT: (A) THE PERSON WHO IS THE
SOURCE OF THE OCCUPATIONAL EXPOSURE IS DECEASED, COMATOSE OR IS DETER-
MINED BY HIS OR HER ATTENDING HEALTH CARE PROFESSIONAL TO LACK MENTAL
CAPACITY TO CONSENT TO AN HIV RELATED TEST AND IS NOT REASONABLY
EXPECTED TO RECOVER IN TIME FOR THE EXPOSED PERSON TO RECEIVE APPROPRI-
ATE MEDICAL TREATMENT, AS DETERMINED BY THE EXPOSED PERSON'S ATTENDING
A. 7892--A 4
HEALTH CARE PROFESSIONAL WHO WOULD ORDER OR PROVIDE SUCH TREATMENT; (B)
THERE IS NO PERSON AVAILABLE OR REASONABLY LIKELY TO BECOME AVAILABLE
WHO HAS THE LEGAL AUTHORITY TO CONSENT TO THE HIV RELATED TEST ON BEHALF
OF THE SOURCE PERSON IN TIME FOR THE EXPOSED PERSON TO RECEIVE APPROPRI-
ATE MEDICAL TREATMENT; AND (C) THE EXPOSED PERSON WILL BENEFIT MEDICALLY
BY KNOWING THE SOURCE PERSON'S HIV TEST RESULTS, AS DETERMINED BY THE
EXPOSED PERSON'S HEALTH CARE PROFESSIONAL AND DOCUMENTED IN THE EXPOSED
PERSON'S MEDICAL RECORD; (II) IN WHICH CASE (A) A PROVIDER SHALL ORDER
AN ANONYMOUS HIV TEST OF THE SOURCE PERSON; AND (B) THE RESULTS OF SUCH
ANONYMOUS TEST, BUT NOT THE IDENTITY OF THE SOURCE PERSON, SHALL BE
DISCLOSED ONLY TO THE ATTENDING HEALTH CARE PROFESSIONAL OF THE EXPOSED
PERSON SOLELY FOR THE PURPOSE OF ASSISTING THE EXPOSED PERSON IN MAKING
APPROPRIATE DECISIONS REGARDING POST-EXPOSURE MEDICAL TREATMENT; AND (C)
THE RESULTS OF THE TEST SHALL NOT BE DISCLOSED TO THE SOURCE PERSON OR
PLACED IN THE SOURCE PERSON'S MEDICAL RECORD.
7. In the event that an HIV related test is ordered by a physician or
certified nurse practitioner pursuant to the provisions of the education
law providing for non-patient specific regimens, then for the purposes
of this section the individual administering the test shall be deemed to
be the individual ordering the test.
S 2. The public health law is amended by adding a new section 2781-a
to read as follows:
S 2781-A. REQUIRED OFFERING OF HIV RELATED TESTING. 1. EVERY INDIVID-
UAL BETWEEN THE AGES OF THIRTEEN AND SIXTY-FOUR YEARS (OR YOUNGER OR
OLDER IF THERE IS EVIDENCE OR INDICATION OF RISK ACTIVITY) WHO RECEIVES
HEALTH SERVICES AS AN INPATIENT OR IN THE EMERGENCY DEPARTMENT OF A
GENERAL HOSPITAL DEFINED IN SUBDIVISION TEN OF SECTION TWENTY-EIGHT
HUNDRED ONE OF THIS CHAPTER OR WHO RECEIVES PRIMARY CARE SERVICES IN AN
OUTPATIENT DEPARTMENT OF SUCH HOSPITAL OR IN A DIAGNOSTIC AND TREATMENT
CENTER LICENSED UNDER ARTICLE TWENTY-EIGHT OF THIS CHAPTER OR IN OTHER
MEDICAL HEALTH CARE SETTINGS LICENSED UNDER ARTICLE TWENTY-EIGHT OF THIS
CHAPTER SHALL BE OFFERED AN HIV RELATED TEST UNLESS THE HEALTH CARE
PRACTITIONER PROVIDING SUCH SERVICES REASONABLY BELIEVES THAT: (A) THE
INDIVIDUAL IS BEING TREATED FOR A LIFE THREATENING EMERGENCY; OR (B) THE
INDIVIDUAL HAS PREVIOUSLY BEEN OFFERED OR HAS BEEN THE SUBJECT OF AN HIV
RELATED TEST (EXCEPT THAT A TEST SHALL BE OFFERED IF OTHERWISE INDI-
CATED); OR (C) THE INDIVIDUAL LACKS CAPACITY TO CONSENT TO AN HIV
RELATED TEST.
2. AS USED IN THIS SECTION, "PRIMARY CARE" MEANS THE MEDICAL FIELDS OF
FAMILY MEDICINE, GENERAL PEDIATRICS, PRIMARY CARE, INTERNAL MEDICINE,
PRIMARY CARE OBSTETRICS, OR PRIMARY CARE GYNECOLOGY, WITHOUT REGARD TO
BOARD CERTIFICATION.
3. THE OFFERING OF HIV RELATED TESTING UNDER THIS SECTION SHALL BE
CULTURALLY AND LINGUISTICALLY APPROPRIATE IN ACCORDANCE WITH RULES AND
REGULATIONS PROMULGATED BY THE COMMISSIONER.
4. THIS SECTION SHALL NOT AFFECT THE SCOPE OF PRACTICE OF ANY HEALTH
CARE PRACTITIONER OR DIMINISH ANY AUTHORITY OR LEGAL OR PROFESSIONAL
OBLIGATION OF ANY HEALTH CARE PRACTITIONER TO OFFER AN HIV RELATED TEST
OR TO PROVIDE SERVICES OR CARE FOR THE SUBJECT OF AN HIV RELATED TEST.
S 3. Section 2135 of the public health law, as added by chapter 163 of
the laws of 1998, is amended to read as follows:
S 2135. Confidentiality. All reports or information secured by the
department, municipal health commissioner or district health officer
under the provisions of this title shall be confidential except:
1. in so far as is necessary to carry out the provisions of this
title;
A. 7892--A 5
2. WHEN USED IN THE AGGREGATE, WITHOUT PATIENT SPECIFIC IDENTIFYING
INFORMATION, IN PROGRAMS APPROVED BY THE COMMISSIONER FOR THE IMPROVE-
MENT OF THE QUALITY OF MEDICAL CARE PROVIDED TO PERSONS WITH HIV/AIDS;
OR
3. WHEN USED WITHIN THE STATE OR LOCAL HEALTH DEPARTMENT BY PUBLIC
HEALTH DISEASE PROGRAMS TO ASSESS CO-MORBIDITY OR COMPLETENESS OF
REPORTING AND TO DIRECT PROGRAM NEEDS, IN WHICH CASE PATIENT SPECIFIC
IDENTIFYING INFORMATION SHALL NOT BE DISCLOSED OUTSIDE THE STATE OR
LOCAL HEALTH DEPARTMENT.
S 4. Subdivision 4 of section 2780 of the public health law, as added
by chapter 584 of the laws of 1988, is amended to read as follows:
4. "HIV related test" means any laboratory test or series of tests
[for any virus, antibody, antigen or etiologic agent whatsoever thought
to cause or to indicate the presence of AIDS] APPROVED FOR THE DIAGNOSIS
OF HIV.
S 5. Subdivision 1 of section 2130 of the public health law, as added
by chapter 163 of the laws of 1998, is amended to read as follows:
1. Every physician or other person authorized by law to order diagnos-
tic tests or make a medical diagnosis, or any laboratory performing such
tests shall immediately (a) upon [initial] determination that a person
is infected with human immunodeficiency virus (HIV), [or] (b) upon
[initial] diagnosis that a person is afflicted with the disease known as
acquired immune deficiency syndrome (AIDS), [or] (c) upon [initial]
diagnosis that a person is afflicted with HIV related illness, report
such case to the commissioner.
S 6. Paragraph (a) of subdivision 5 of section 2782 of the public
health law, as added by chapter 584 of the laws of 1988, is amended to
read as follows:
(a) Whenever disclosure of confidential HIV related information is
made pursuant to this article, except for disclosures made pursuant to
[paragraph] PARAGRAPHS (a), (D) AND (I) of subdivision one of this
section or paragraph (a) or (e) of subdivision four of this section,
such disclosure shall be accompanied or followed by a statement in writ-
ing which includes the following or substantially similar language:
"This information has been disclosed to you from confidential records
which are protected by state law. State law prohibits you from making
any further disclosure of this information without the specific written
consent of the person to whom it pertains, or as otherwise permitted by
law. Any unauthorized further disclosure in violation of state law may
result in a fine or jail sentence or both. A general authorization for
the release of medical or other information is NOT sufficient authori-
zation for further disclosure." An oral disclosure shall be accompanied
or followed by such a notice within ten days.
S 7. Subdivision 1 of section 2782 of the public health law is amended
by adding a new paragraph (q) to read as follows:
(Q) AN EXECUTOR OR AN ADMINISTRATOR OF AN ESTATE SHALL HAVE ACCESS TO
THE CONFIDENTIAL HIV INFORMATION OF A DECEASED PERSON AS NEEDED TO
FULFILL HIS OR HER RESPONSIBILITIES/DUTIES AS AN EXECUTOR OR ADMINISTRA-
TOR.
S 8. Subdivision 1 of section 2786 of the public health law, as added
by chapter 584 of the laws of 1988, is amended to read as follows:
1. The commissioner shall promulgate rules and regulations concerning
implementation of this article for health facilities, health care
providers and other persons to whom this article is applicable. The
commissioner shall also develop STANDARDIZED MODEL forms to be used for
informed consent for HIV related testing and for the release of confi-
A. 7892--A 6
dential HIV related information and materials for pre-test counseling as
required by subdivision [three] TWO of section twenty-seven hundred
eighty-one of this article, and for post-test counseling as required by
subdivision five of section twenty-seven hundred eighty-one of this
article. Persons, health facilities and health care providers may use
forms for informed consent for HIV related testing, and for the release
of confidential HIV related information other than those forms developed
pursuant to this section, provided [that the person, health facility or
health care provider doing so receives prior authorization from] THE
FORMS CONTAINED INFORMATION CONSISTENT WITH THE STANDARDIZED MODEL FORMS
DEVELOPED BY the commissioner PURSUANT TO THIS SUBDIVISION. All forms
developed or [authorized] USED pursuant to this section shall be written
in a clear and coherent manner using words with common, everyday mean-
ings. The commissioner, in consultation with the AIDS institute advisory
council, shall promulgate regulations to identify those circumstances
which create a significant risk of contracting or transmitting HIV
infection; provided, however, that such regulations shall not be deter-
minative of any significant risk determined pursuant to paragraph (a) of
subdivision four of section twenty-seven hundred eighty-two or section
twenty-seven hundred eighty-five of this article.
S 9. On or before September 1, 2011 the commissioner of health shall
evaluate the impact of this act with respect to the number of persons
who are tested for HIV infection and the number of persons who access
care and treatment. Such report shall be submitted to the governor and
to the chairs of the assembly and senate committees on health.
S 10. This act shall take effect September 1, 2009; provided, however,
that the commissioner of health is authorized to adopt rules and regu-
lations necessary to implement the provisions of this act prior to such
effective date.