S T A T E O F N E W Y O R K
________________________________________________________________________
7610
2009-2010 Regular Sessions
I N A S S E M B L Y
April 16, 2009
___________
Introduced by M. of A. GOTTFRIED, GUNTHER, O'DONNELL, CAHILL, EDDINGTON,
BRENNAN, SCHIMEL -- Multi-Sponsored by -- M. of A. BING, CHRISTENSEN,
JAFFEE, KELLNER, MILLMAN, PEOPLES, SWEENEY -- (at request of the
Department of Health) -- read once and referred to the Committee on
Health
AN ACT to amend the public health law, in relation to HIV testing
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] HAVING RECEIVED 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.]
2. Informed consent to [an] HIV related [test] TESTING shall consist
of a statement CONSENTING TO HIV RELATED TESTING 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:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05622-02-9
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(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]
AFTER THE SUBJECT OR SUCH OTHER PERSON HAS RECEIVED THE INFORMATION
DESCRIBED IN SUBDIVISION THREE OF THIS SECTION.
2-A. 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.
2-B. 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.
3. Prior to the execution of [a] written informed consent, a person
ordering the performance of an HIV related test shall provide EITHER
DIRECTLY OR THROUGH A REPRESENTATIVE to the subject of an HIV related
test or, if the subject lacks capacity to consent, to a person author-
ized 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 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.] THAT:
(A) HIV CAUSES AIDS AND CAN BE TRANSMITTED THROUGH SEXUAL ACTIVITIES
AND NEEDLE-SHARING, BY PREGNANT WOMEN TO THEIR FETUSES, AND THROUGH
BREASTFEEDING INFANTS;
(B) THERE IS TREATMENT FOR HIV THAT CAN HELP AN INDIVIDUAL STAY HEAL-
THY;
(C) INDIVIDUALS WITH HIV OR AIDS CAN ADOPT SAFE PRACTICES TO PROTECT
UNINFECTED AND INFECTED PEOPLE IN THEIR LIVES FROM BECOMING INFECTED OR
MULTIPLY INFECTED WITH HIV;
(D) TESTING IS VOLUNTARY AND CAN BE DONE ANONYMOUSLY AT A PUBLIC TEST-
ING CENTER;
(E) THE LAW PROTECTS THE CONFIDENTIALITY OF HIV RELATED TEST RESULTS;
AND
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(F) THE LAW PROHIBITS DISCRIMINATION BASED ON AN INDIVIDUAL'S HIV
STATUS AND SERVICES ARE AVAILABLE TO HELP WITH SUCH CONSEQUENCES.
PROTOCOLS SHALL BE IN PLACE TO ENSURE COMPLIANCE WITH THIS SECTION.
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:
(A) 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)] (I)
for coping with the emotional consequences of learning the result; [(b)]
(II) regarding the discrimination problems that disclosure of the result
could cause; [(c)] (III) for behavior change to prevent transmission or
contraction of HIV infection; [(d)] (IV) to inform such person of avail-
able medical treatments; and [(e)] (V) regarding the [test subject's]
need to notify his or her contacts; AND
(B) IN THE CASE OF A TEST NOT INDICATING EVIDENCE OF HIV INFECTION,
PROVIDE (IN A MANNER WHICH MAY CONSIST OF ORAL OR WRITTEN REFERENCE TO
INFORMATION PREVIOUSLY PROVIDED) 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 INFORMATION CONCERNING
THE RISKS OF PARTICIPATING IN HIGH RISK SEXUAL OR NEEDLE-SHARING BEHAV-
IOR.
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 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
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(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 DETERMINED 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 APPROPRIATE MEDICAL TREATMENT, AS DETERMINED BY THE EXPOSED
PERSON'S ATTENDING HEALTH CARE PROFESSIONAL WHO WOULD ORDER OR PROVIDE
SUCH TREATMENT;
(B) THERE IS NO PERSON AVAILABLE OR REASONABLY LIKELY TO BECOME AVAIL-
ABLE 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
APPROPRIATE 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-EXPO-
SURE 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 EIGHTEEN 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 SHALL BE
OFFERED AN HIV RELATED TEST UNLESS THE HEALTH CARE PRACTITIONER PROVID-
ING 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 INDICATED); 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.
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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: (A) in
so far as is necessary to carry out the provisions of this title; (B)
WHEN USED IN THE AGGREGATE, WITHOUT PATIENT SPECIFIC IDENTIFYING INFOR-
MATION, IN PROGRAMS APPROVED BY THE COMMISSIONER FOR THE IMPROVEMENT OF
THE QUALITY OF MEDICAL CARE PROVIDED TO PERSONS WITH HIV/AIDS; OR (C)
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 OR HIV RELATED TESTING" means any laboratory
test, TESTS 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, AND (D)
UPON PERIODIC MONITORING OF HIV INFECTION BY ANY LABORATORY TESTS report
such case OR DATA to the commissioner.
S 6. 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 7. 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
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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 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-
dential HIV related information and materials for pre-test counseling as
required by subdivision three 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 confi-
dential HIV related information other than those forms developed pursu-
ant to this section, provided [that the person, health facility or
health care provider doing so receives prior authorization from] THEY
CONTAIN INFORMATION CONSISTENT WITH THE STANDARDIZED MODEL FORMS DEVEL-
OPED BY the commissioner. All forms developed or [authorized] USED
pursuant to this section shall be written in a clear and coherent manner
using words with common, everyday meanings. The commissioner, in consul-
tation with the AIDS institute advisory council, shall promulgate regu-
lations to identify those circumstances 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 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 this act prior to such effective date.