S T A T E O F N E W Y O R K
________________________________________________________________________
S. 4484--A A. 7757--A
2009-2010 Regular Sessions
S E N A T E - A S S E M B L Y
April 23, 2009
___________
IN SENATE -- Introduced by Sens. HUNTLEY, ADAMS, MONSERRATE, MONTGOMERY,
PADAVAN, STAVISKY -- read twice and ordered printed, and when printed
to be committed to the Committee on Health -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee
IN ASSEMBLY -- Introduced by M. of A. ROBINSON, SPANO, PEOPLES, MAYER-
SOHN, WEPRIN, GALEF, ARROYO, CUSICK, LANCMAN, JEFFRIES, PERALTA, SCAR-
BOROUGH, ESPAILLAT, PHEFFER, BARRON, BENJAMIN, HOOPER, COOK, PERRY,
CASTRO, CAMARA, GANTT, CLARK, TITUS, DenDEKKER, BOYLAND, AUBRY,
J. RIVERA, JAFFEE, FIELDS, RAMOS, P. RIVERA, WRIGHT -- Multi-Sponsored
by -- M. of A. ABBATE, ALFANO, BACALLES, BARCLAY, BARRA, BENEDETTO,
BOYLE, BRADLEY, BROOK-KRASNY, BURLING, BUTLER, CALHOUN, CARROZZA,
COLTON, CONTE, DESTITO, DINOWITZ, ENGLEBRIGHT, FITZPATRICK, GABRYSZAK,
GIANARIS, GIGLIO, GORDON, HAWLEY, HIKIND, HOYT, KOON, LUPARDO, MAGEE,
MAGNARELLI, MAISEL, MARKEY, McDONOUGH, McKEVITT, MENG, MILLER,
MORELLE, OAKS, ORTIZ, PAULIN, QUINN, RAIA, REILICH, REILLY, N. RIVERA,
RUSSELL, SALADINO, SAYWARD, SKARTADOS, STIRPE, SWEENEY, TEDISCO,
THIELE, TOBACCO, WALKER, WEISENBERG, ZEBROWSKI -- read once and
referred to the Committee on Health -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
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. 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:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11228-03-9
S. 4484--A 2 A. 7757--A
S 2781. HIV related testing. 1. (A) 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.
(B) IN THE EVENT THAT THE PERSON ORDERING THE TEST IS ORDERING A RAPID
HIV RELATED TEST AND DOES NOT HAVE CAPACITY AT THE SITE OF SUCH TEST TO
PERFORM OTHER MEDICAL CARE, SUCH INFORMED CONSENT SHALL BE IN WRITING
AND SIGNED BY THE SUBJECT OF THE TEST.
2. (A) Informed consent to an HIV related test shall consist of [a
statement 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.] INFORMING THE PERSON OF THE PURPOSE OF THE TEST AND ITS MEANS
WHILE OFFERING AN OPPORTUNITY FOR QUESTIONS.
(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 INFORMED CONSENT IN ACCORDANCE WITH THIS SECTION, THE PHYSI-
CIAN 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
S. 4484--A 3 A. 7757--A
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. 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.
4. 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. 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 coun-
seling[: (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], AND 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 chap-
ter[.]; OR
S. 4484--A 4 A. 7757--A
(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, PROVIDED THAT:
(I) 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 HEALTH CARE PROFESSIONAL WHO WOULD ORDER OR PROVIDE SUCH TREAT-
MENT;
(II) 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
(III) 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.
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 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, GENERAL INTERNAL
MEDICINE, 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: (A) in
so far as is necessary to carry out the provisions of this title; (B)
S. 4484--A 5 A. 7757--A
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 OR OTHERWISE ABLE TO MAKE A SPECIFIC DIAGNOSIS OF
HIV INFECTION.
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. 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 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 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 arti-
cle,] 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 commissioner.
S. 4484--A 6 A. 7757--A
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 9. 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 10. This act shall take effect on the one hundred twentieth day
after it shall have become a law.