NY State Senate Bill 2009-S6734

Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
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Delivered to Governor
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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 02, 2010	referred to health

co-Sponsors

2009-S6734 (ACTIVE) - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §§2781, 2782 & 2785-a, add §2781-a, Pub Health L

2009-S6734 (ACTIVE) - Summary

Provides for HIV related testing to be offered routinely during medical visits.

2009-S6734 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6734

 TITLE OF BILL :
An act to amend the public health law, in relation to HIV related
testing


 PURPOSE :
To enhance the frequency of HIV testing so that individuals are aware
of their HIV status and where appropriate can be referred to
appropriate care and related services.

 SUMMARY OF PROVISIONS :
Section 1 sets forth Legislative findings.

Section 2 amends PHL 2781 to remove redundant pre-test counseling
provisions in subdivision 2, these standards are instead included in
subdivision 3 and are consistent with current Department of Health
guidelines. A new subdivision 2-a is added allowing written consent
for an HIV-related test to be part of a signed general consent to
medical care. The general consent must include a clearly marked place
adjacent to the signature line allowing an individual to specifically
decline HIV related testing in writing. An informed consent would
remain valid until revoked or it expires, oral notification
(documented in a patient's record) to a subject would be required for
any subsequent performance of an HIV related test. Subdivision 5 is

amended to streamline post-test counseling provisions. A new
subdivision 5-a is added to provide for the arrangement of follow-up
medical care for persons testing positive for HIV.

Section 3 adds a new section 2781-a to the Public Health Law requiring
every physician, physician assistant, nurse practitioner, or midwife
to offer to perform or arrange for an HIV -related test for
individuals between the ages of 18 and 64 when the individual is
receiving primary care services, or care in an emergency room, from
the practitioner.  Exceptions are made for instances where the
individual is being treated for a life threatening emergency, the
individual has received an HIV test in the past 12 months, or the
individual lacks capacity to consent.  The offering of an HIV related
test would be required to be in a culturally and linguistically
appropriate manner in accordance with rules and regulations from the
Commissioner of Health.

Sections 4 and 5 make technical amendments to PHL 2782(8) and
2785-a(2) respectively.

Section 6 requires the Commissioner of Health to report to the
Governor and the Legislature two and four years after the bill takes
effect assessing the impact of required offering on the frequency of
HIV testing and other outcomes.

Section 7 sets an effective date of 180 days after the bill shall have
become law.

 EXISTING LAW :
Currently, the HIV informed consent must be separate from a general
informed consent and must be written. There is no mandate for HIV
testing by age group, regardless of risk, and pre- and post-counseling
is required.

 JUSTIFICATION :
More than 100,000 New York City residents are living with HIV/AIDS -
more cases than Los Angeles, San Francisco, Miami, and combined. Each
year, more than 1,000 people in NYC first find out that they are
HIV-positive when they are already sick with AIDS. They had been
infected, on average, for 10 years.
The key to stemming this epidemic, as recognized by the Mayor of New
York City, the CDC, San Francisco, and other jurisdictions, is making
voluntary HIV testing a routine part of medical care in the same
manner as testing for other treatable conditions. Now that there is
effective treatment, the benefits of getting tested for HIV far
outweigh the risks. Reducing barriers to HIV testing and improving
linkage to care of those testing HIV-positive will help people learn
their status, live longer, protect themselves, and reduce spread of
HIV.

A one-time, durable written consent which may be included as part of
the general medical consent, with the option to opt-out at time of
getting written consent and oral notification prior to testing is a
much more streamlined approach. This will further support
patient-autonomy because the patient can choose to decline test at the
time of offer and/or can withdraw consent at any time.

The provisions in this bill are complementary in that they mandate
health care practitioners offer HIV testing, while at the same time
streamlining the counseling and consent process that health care
practitioners often cite as an administrative burden and barrier to
their offering of HIV tests.

 LEGISLATIVE HISTORY :
2007-2008:  S.6326

 FISCAL IMPLICATIONS :
Minimal, as mandating testing will increase state reimbursements for
tests.

 LOCAL FISCAL IMPLICATIONS :
To be determined.

 EFFECTIVE DATE :
180 days after it shall have become law.

2009-S6734 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6734

                            I N  S E N A T E

                            February 2, 2010
                               ___________

Introduced by Sens. HANNON, DeFRANCISCO, LITTLE, MORAHAN, VOLKER -- read
  twice  and  ordered  printed,  and when printed to be committed 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. Legislative findings. Public health authorities,  including
the  Centers for Disease Control and Prevention (CDC), stress the impor-
tance of greatly increasing the number of people who receive testing for
infection with HIV. The CDC stresses the offering of testing to patients
without regard to perceived risk. HIV testing helps infected patients by
enabling them to enter health care earlier to monitor their HIV  disease
and initiate treatment when appropriate.  HIV testing provides a unique,
important opportunity to discuss behaviors that prevent transmitting the
virus to others.
  Yet  many health care professionals miss opportunities to offer an HIV
test to their patients for a variety of reasons. Many may  be  reluctant
to  bring  up  what  they anticipate will be a difficult topic. They may
assume that their patients are not at risk for HIV infection.  They  may
worry that patients will interpret the offer of an HIV test to mean that
the  practitioner  is  making negative assumptions about the patient. At
the same time, many patients may not perceive themselves to be  at  risk
for  HIV and so may not initiate testing discussions themselves.  Conse-
quently, many patients are highly unlikely to request HIV testing if  it
is  not offered by their provider. Requiring the offer of testing to all
patients without regard to perceived individual risk will help simplify,
destigmatize, and universalize the offer of HIV testing,  and  therefore
increase  the  likelihood  that individuals will be tested and therefore
learn their HIV status. Because the most important reason for  expanding
HIV  testing  is bringing HIV infected individuals into care as early as
possible, a positive test result must lead to counseling, services,  and
care.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15389-01-0

S. 6734                             2

  This  legislation  will  also  simplify  and streamline the process of
obtaining written informed  consent  to  HIV  related  testing  and  the
providing of pre- and post-test counseling and information.
  Nothing  contained in this legislation shall be construed as authoriz-
ing any individual to require any person to have an HIV related test  or
treatment for HIV/AIDS.
  Therefore, this legislation will help protect the health of individual
patients  while  supporting  health  care  providers in their efforts to
improve the public's health. This legislation is consistent with  and  a
logical  extension  of New York's laws on HIV testing consent and confi-
dentiality.
  It is important that the offering of testing and arranging for, refer-
ring for, and providing of follow-up services be culturally and linguis-
tically appropriate.
  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]  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:
  (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.  WRITTEN  CONSENT  TO HIV RELATED TESTING MAY BE PART OF A SIGNED
GENERAL CONSENT TO MEDICAL CARE FOR THE SUBJECT OF  THE  TEST,  PROVIDED
THAT  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  HIV  RELATED  TESTING  IN WRITING ON SUCH GENERAL

S. 6734                             3

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 THAT HAS BEEN GIVEN 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
AGENT, 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 OR SUCH PERSON'S AGENT
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  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 AND 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 PROTECT PEOPLE  IN  THEIR  LIVES,
AND  THOSE  WHO  DO  NOT  HAVE  HIV  CAN  PROTECT  THEMSELVES FROM BEING
INFECTED;
  (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
  (F)  THE  LAW  PROHIBITS  DISCRIMINATION BASED ON THEIR HIV STATUS AND
SERVICES ARE AVAILABLE TO HELP WITH SUCH CONSEQUENCES.
  4. A person authorized pursuant to law to order the performance of  an
HIV  related  test  OR  SUCH  PERSON'S AGENT shall provide 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 OR SUCH
PERSON'S AGENT shall:
  (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;

S. 6734                             4

  [(c)] (III) for behavior change to prevent transmission or contraction
of HIV infection;
  [(d)] (IV) to inform such person of available 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  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 BEHAVIOR.
  5-A.  WITH THE CONSENT OF THE SUBJECT OF A TEST INDICATING EVIDENCE OF
HIV INFECTION OR, IF THE SUBJECT LACKS CAPACITY TO CONSENT,  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 AGENT, SHALL PROVIDE OR ARRANGE WITH A HEALTH CARE PROVIDER FOR
AN APPOINTMENT FOR 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.
  (d)  conducted pursuant to section twenty-five hundred-f of this chap-
ter.
  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 3. 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 PHYSI-
CIAN, PHYSICIAN ASSISTANT,  NURSE  PRACTITIONER,  OR  MIDWIFE  PROVIDING
PRIMARY  CARE, OR CARE IN THE EMERGENCY DEPARTMENT OF A GENERAL HOSPITAL
AS DEFINED IN SUBDIVISION TEN OF SECTION  TWENTY-EIGHT  HUNDRED  ONE  OF
THIS  CHAPTER,  SHALL OFFER TO PERFORM OR OFFER TO ORDER, OR ARRANGE FOR
THE PERFORMANCE OF AN HIV RELATED TEST FOR EACH INDIVIDUAL  BETWEEN  THE
AGES  OF  EIGHTEEN  AND  SIXTY-FOUR  WHO  APPLIES FOR OR RECEIVES HEALTH
SERVICES FROM SUCH HEALTH CARE  PRACTITIONER,  UNLESS  THE  HEALTH  CARE
PRACTITIONER REASONABLY BELIEVES THAT (A) THE INDIVIDUAL IS BEING TREAT-
ED  FOR A LIFE THREATENING EMERGENCY; OR (B) THE INDIVIDUAL HAS RECEIVED
AN HIV RELATED TEST IN THE PAST TWELVE MONTHS;  OR  (C)  THE  INDIVIDUAL
LACKS CAPACITY TO CONSENT TO AN HIV RELATED TEST. AS USED IN THIS SUBDI-
VISION,  "PRIMARY  CARE"  MEANS  THE  MEDICAL FIELDS OF FAMILY MEDICINE,
GENERAL PEDIATRICS, PRIMARY CARE INTERNAL MEDICINE, PRIMARY CARE OBSTET-
RICS, OR PRIMARY CARE GYNECOLOGY, WITHOUT REGARD TO BOARD CERTIFICATION.

S. 6734                             5

  2. 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.
  3.  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 4. Subdivision 8 of section  2782  of  the  public  health  law,  as
amended  by  chapter  76  of  the  laws  of  1995, is amended to read as
follows:
  8. Confidential HIV related  information  shall  be  recorded  in  the
medical  record  of  the  protected individual.   The provisions of this
section shall not prohibit the listing  of  acquired  immune  deficiency
syndrome,  HIV  related  illness  or  HIV  infection in a certificate of
death, autopsy report or related documents prepared pursuant to  article
forty-one of this chapter or other applicable laws, ordinances, rules or
regulations  relating  to the documentation of cause of death, nor shall
this section be construed to modify any laws, ordinances, rules or regu-
lations relative to access to death  certificates,  autopsy  reports  or
such  other related documents. Under no circumstances shall confidential
HIV related information be disclosable pursuant to article  six  of  the
public  officers  law.   Notwithstanding the foregoing, confidential HIV
information obtained pursuant to section 390.15 of the  criminal  proce-
dure  law or section 347.1 of the family court act by either court order
or consent of the protected individual shall  not  be  recorded  in  the
medical  record of the protected individual unless he or she consents to
the recording of such information in a written statement containing  the
relevant  information  [specified]  in [subdivision two of] section [two
thousand seven] TWENTY-SEVEN hundred eighty-one of this article.
  S 5. Subdivision 2 of section 2785-a of  the  public  health  law,  as
added by chapter 76 of the laws of 1995, is amended to read as follows:
  2. At the time of communicating the test results to the subject or the
victim, such public health officer shall directly provide the victim and
person  tested  with  (a) counseling or referrals for counseling for the
purposes specified in [subdivision five of] section [two thousand seven]
TWENTY-SEVEN hundred eighty-one of this  article;  (b)  counseling  with
regard  to  HIV  disease  and  HIV  testing  in  accordance with law and
consistent with [subdivision five of] section [two thousand seven] TWEN-
TY-SEVEN hundred eighty-one of this article; and (c) appropriate  health
care  and support services, or referrals to such available services.  If
at the time of communicating the test results, the person tested  is  in
the  custody  of  the  department of correctional services, division for
youth, office of mental health or a local correctional institution,  the
counseling  and services required by this subdivision may be provided by
a public health officer associated with the county  or  facility  within
which the person tested is confined.
  S  6.  The commissioner of health shall report to the governor and the
legislature two years after the effective date of this  act,  and  again
four  years  after the effective date of this act, on the implementation
of this act and the affect of this act on the frequency of  HIV  related
testing  and other outcomes, and making recommendations relating to this
act. The commissioner of health may contract with  bona  fide  organiza-
tions  seeking  to  evaluate  the implementation and affect of this act,
consistent with the protection  of  the  confidentiality  of  individual
identifying information.

S. 6734                             6

  S 7. This act shall take effect on the one hundred eightieth day after
it  shall  become a law; provided that the commissioner of health shall,
prior to the effective date of this act, make regulations and  take  any
other actions to implement this act on such date.

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Senate Bill S6734

Sponsored By

Archive: Last Bill Status - In Senate Committee Health Committee

co-Sponsors

2009-S6734 (ACTIVE) - Details

2009-S6734 (ACTIVE) - Summary

2009-S6734 (ACTIVE) - Sponsor Memo

2009-S6734 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S6734

Share this bill

Sponsored By

Kemp Hannon

Archive: Last Bill Status - In Senate Committee Health Committee

co-Sponsors

John A. DeFrancisco

Thomas P. Morahan

Dale M. Volker

2009-S6734 (ACTIVE) - Details

2009-S6734 (ACTIVE) - Summary

2009-S6734 (ACTIVE) - Sponsor Memo

2009-S6734 (ACTIVE) - Bill Text download pdf

Comments