2013 New York Consolidated Laws
PBH - Public Health
Article 27-F - (2780 - 2787) HIV AND AIDS RELATED INFORMATION
2781 - HIV related testing.

 
    §  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 having received the written or, where authorized by
  this subdivision, oral, 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.  When the test being ordered is a rapid HIV test, such
  informed consent may be obtained orally and shall be documented  in  the
  subject  of  the  test's  medical  record  by  the  person  ordering the
  performance of the test.
    2. Except where subdivision  one  of  this  section  permits  informed
  consent  to  be obtained orally, informed consent to HIV related 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 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.  A  written  or  oral  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 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.
    2-c. The provisions of this section regarding  oral  informed  consent
  for  a  rapid  HIV test shall not apply to tests performed in a facility
  operated under the correction law.
    3. Prior to the execution of written,  or  obtaining  and  documenting
  oral,  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 authorized pursuant to law to consent to  health
  care for the subject, an explanation 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
  healthy;
    (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
  testing center;
    (e) the law protects the confidentiality of HIV related test results;
    (f)  the  law  prohibits  discrimination  based on an individual's HIV
  status and services are available to help with such consequences; and
    (g) the law allows an individual's informed consent  for  HIV  related
  testing  to  be  valid for such testing until such consent is revoked by
  the subject of the HIV test or expires by its terms.
    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  or authorize documentation of oral
  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: (i) for
  coping with the emotional consequences  of  learning  the  result;  (ii)
  regarding  the  discrimination  problems  that  disclosure of the result
  could cause; (iii)  for  behavior  change  to  prevent  transmission  or
  contraction  of  HIV  infection; (iv) to inform such person of available
  medical treatments; and (v) regarding the 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
  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, 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
    (d)  conducted  pursuant  to  section  twenty-five  hundred-f  of this
  chapter; 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
  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
  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-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.