S T A T E O F N E W Y O R K
________________________________________________________________________
4016
2009-2010 Regular Sessions
I N A S S E M B L Y
January 29, 2009
___________
Introduced by M. of A. MAYERSOHN, CLARK, ZEBROWSKI, MILLER, MAGNARELLI,
PAULIN, FIELDS, SPANO, GALEF, SCARBOROUGH, GREENE, DINOWITZ, PERALTA,
CARROZZA, LAVINE, PERRY, WALKER, CAMARA, HOOPER -- Multi-Sponsored by
-- M. of A. ABBATE, ALESSI, ALFANO, AMEDORE, ARROYO, BACALLES, BALL,
BARCLAY, BARRA, BENJAMIN, BOYLE, BRADLEY, BRODSKY, BROOK-KRASNY,
BURLING, BUTLER, CALHOUN, CONTE, COOK, CROUCH, CUSICK, DelMONTE,
DESTITO, ENGLEBRIGHT, ERRIGO, FINCH, FITZPATRICK, GABRYSZAK, GANTT,
GIANARIS, GIGLIO, GORDON, GUNTHER, HAWLEY, HAYES, HEVESI, HIKIND,
JACOBS, JEFFRIES, KOON, LANCMAN, LATIMER, P. LOPEZ, LUPARDO, MAGEE,
MAISEL, MARKEY, McDONOUGH, McKEVITT, MOLINARO, MORELLE, OAKS, ORTIZ,
PEOPLES, PHEFFER, QUINN, RAIA, REILICH, REILLY, J. RIVERA, N. RIVERA,
ROBINSON, SALADINO, SCOZZAFAVA, SEMINERIO, SWEENEY, THIELE, TITUS,
TOBACCO, TOWNSEND, WEISENBERG, WEPRIN -- read once and referred to the
Committee on Health
AN ACT to amend the public health law, in relation to HIV related test-
ing
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 9 of section 2780 of the public health law, as
added by chapter 584 of the laws of 1988, is amended to read as follows:
9. "Release of confidential HIV related information" means a written
authorization for disclosure of confidential HIV related information
which is signed by the protected individual, or if the protected indi-
vidual lacks capacity to consent, a person authorized pursuant to law to
consent to health care for the individual. Such release shall be dated
and shall specify to whom disclosure is authorized, the purpose for such
disclosure and the time period during which the release is to be effec-
tive. A general authorization for the release of medical or other infor-
mation [shall not be construed] MAY BE USED as a release of confidential
HIV related information[, unless such authorization specifically indi-
cates its dual purpose as a general authorization and an authorization
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00014-01-9
A. 4016 2
for the release of confidential HIV related information and complies
with the requirements of this subdivision].
S 2. 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] AN HIV RELATED test by a laboratory or other
facility, DOCUMENT THE PROVISION OF INFORMED CONSENT AND WHETHER THE
SUBJECT OF THE TEST OR PERSON AUTHORIZED PURSUANT TO LAW TO CONSENT TO
HEALTH CARE FOR SUCH INDIVIDUAL DECLINED THE OFFER OF AN HIV RELATED
TEST.
[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 informed consent, a person
ordering the performance of an HIV related test shall provide to the
subject of an HIV related test or, if the subject lacks capacity to
consent, to a person authorized pursuant to law to consent to health
care for the subject, an explanation of the nature of AIDS and HIV
related illness, information about discrimination problems that disclo-
sure 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.
4.] 2. 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 WRITTEN CONSENT FOR GENERAL MEDICAL CARE OR ANY OTHER MEDICAL
TEST OR PROCEDURE PROVIDED THAT THE FORMS MAKE IT CLEAR THAT THE SUBJECT
OF THE TEST MAY CONSENT TO GENERAL MEDICAL CARE, TESTS OR MEDICAL PROCE-
DURES WITHOUT BEING REQUIRED TO CONSENT TO HIV RELATED TESTING AND
CLEARLY EXPLAIN HOW THE SUBJECT OF THE TEST MAY OPT OUT OF HIV RELATED
TESTING.
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3. A person authorized pursuant to law to order the performance of an
HIV related test shall provide to the person seeking such test an oppor-
tunity 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 author-
ized 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.] 4. At the time of communicating [the] A POSITIVE test result to
the subject of the test, a person ordering the performance of an HIV
related test shall 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 noti-
fy his or her contacts.
[6.] 5. The provisions of this section shall not apply to the perform-
ance 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] FOUR 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.
[7.] 6. In the event that an HIV related test is ordered by a physi-
cian 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 3. Subdivision 4 of section 2783 of the public health law, as added
by chapter 584 of the laws of 1988, is amended to read as follows:
4. Any cause of action to recover damages [based on a failure to
provide information, explanations, or counseling prior to the execution
of a written informed consent, or] based on a lack of informed consent
in the ordering or performance of an HIV related test in violation of
this article shall be governed by the provisions of section two thousand
eight hundred five-d of this chapter.
S 4. 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
A. 4016 4
commissioner shall also develop forms to be used [for informed consent
for HIV related testing and] for the release of confidential HIV related
information [and materials for pre-test counseling as required by subdi-
vision three of section twenty-seven hundred eighty-one of this article,
and] for post-test counseling as required by subdivision [five] FOUR 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 commissioner.
All forms developed or authorized pursuant to this section shall be
written in a clear and coherent manner using words with common, everyday
meanings. The commissioner, in consultation with the AIDS institute
advisory council, shall promulgate regulations to identify those circum-
stances which create a significant risk of contracting or transmitting
HIV infection; provided, however, that such regulations shall not be
determinative 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 5. Nothing contained in this act shall be construed as authorizing
any individual to require any person to have an HIV related test or
treatment for HIV/AIDS.
S 6. This act shall take effect on the one hundred twentieth day after
it shall have become a law.