S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7896
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 28, 2019
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred to the
   Committee on Health
 
 AN ACT to amend the public health law, in relation to HIV related  test-
   ing requirements
 
   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 amended by  chap-
 ter  308 of the laws of 2010, subdivisions 1 and 2 as amended by chapter
 502 of the laws of 2016 and subdivision 4 as amended  by  section  2  of
 part A of chapter 60 of the laws of 2014, is amended to read as follows:
   §  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, at a minimum, [orally advising] PROVIDING NOTICE BY
 MEANS READILY ACCESSIBLE IN MULTIPLE LANGUAGES TO the protected individ-
 ual, or, when the protected individual  lacks  capacity  to  consent,  a
 person authorized to consent to health care for such individual, that an
 HIV-related test is being performed, or over the objection of such indi-
 vidual  or  authorized  persons.  Such  [advisement  and objection, when
 applicable] NOTICE MAY BE PROVIDED ORALLY,  IN  WRITING  BY  PROMINENTLY
 DISPLAYED  SIGNAGE,  BY  ELECTRONIC  MEANS  OR OTHER APPROPRIATE FORM OF
 COMMUNICATION. SUCH NOTICE SHALL INCLUDE INFORMATION THAT HIV TESTING IS
 VOLUNTARY. A REFUSAL OF AN HIV RELATED TEST shall be noted in the  indi-
 vidual's record.
   2.  [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:

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11267-02-9
              

 A. 7896                             2

   (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;
   (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 requires that an individual be advised before an HIV-re-
 lated test is performed, and that no test shall be performed over his or
 her objection.
   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 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) 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, ORAL OR WRITTEN INFORMATION EXPLAINING THAT:
   (I) HIV CAUSES AIDS AND CAN BE TRANSMITTED THROUGH  SEXUAL  ACTIVITIES
 AND  NEEDLE-SHARING,  BY  PREGNANT  WOMEN  TO THEIR FETUSES, AND THROUGH
 BREASTFEEDING INFANTS;
   (II) THERE IS TREATMENT FOR HIV THAT CAN HELP AN INDIVIDUAL STAY HEAL-
 THY AND IF TAKEN REGULARLY WILL PREVENT SEXUAL TRANSMISSION OF HIV;
   (III) 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;
   (IV) THE LAW PROTECTS THE CONFIDENTIALITY OF HIV RELATED TEST RESULTS;
   (V)  THE  LAW  PROHIBITS  DISCRIMINATION  BASED ON AN INDIVIDUAL'S HIV
 STATUS AND SERVICES ARE AVAILABLE TO HELP WITH SUCH CONSEQUENCES;
   (VI) THE LAW REQUIRES THAT NO HIV RELATED TEST SHALL BE PERFORMED OVER
 AN INDIVIDUAL'S STATED OBJECTION;
   (VII) PRE- AND POST-EXPOSURE PROPHYLAXIS MEDICATIONS  (PREP  AND  PEP)
 ARE AVAILABLE TO PROTECT PERSONS AT RISK OF HIV INFECTION; AND
   (B)  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) TO
 INFORM SUCH PERSON OF AVAILABLE MEDICAL TREATMENTS; (II) for coping with
 the emotional consequences of learning the result; [(ii)] (III)  regard-
 ing  the  discrimination  problems  that  disclosure of the result could
 cause; [(iii)] (IV) for  behavior  change  to  prevent  transmission  or

 A. 7896                             3
 
 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 (VI) REGARDING PRE- AND POST-EXPOSURE PROPHYLAXIS MEDICA-
 TIONS AVAILABLE TO SEXUAL PARTNERS TO PREVENT HIV INFECTION.
   [(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.] 2-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.] 3. 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] TWO 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
   (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

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   (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.] 4. 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.
   § 2. This act shall take effect immediately.