S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7809
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             December 13, 2023
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee on Rules
 
 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] PRIOR  TO  ORDERING
 THE TEST, INFORMATION SHALL BE PROVIDED, EITHER ORALLY OR BY PROMINENTLY
 DISPLAYED  SIGNAGE,  BY  PRINTED MATERIALS, BY ELECTRONIC MEANS OR OTHER
 APPROPRIATE FORM OF COMMUNICATION to the subject of an HIV related  test
 or,  if  the  subject  lacks capacity to consent, to a person authorized
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13770-02-3
              

 S. 7809                             2
 
 pursuant to law to consent to health care for the subject, [an  explana-
 tion] EXPLAINING 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;
   (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] NOTIFIED before
 an HIV-related test is performed, and that no test  shall  be  performed
 over [his or her] THEIR objection; AND
   (H)  PRE- AND POST-EXPOSURE PROPHYLAXIS MEDICATIONS (PREP AND PEP) ARE
 AVAILABLE TO PROTECT PERSONS AT RISK OF HIV INFECTION.
   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)  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 (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
 (I) the risks of participating in high  risk  sexual  or  needle-sharing
 behavior;  AND (II) REGARDING PRE- AND POST-EXPOSURE PROPHYLAXIS MEDICA-
 TIONS AVAILABLE TO PREVENT HIV INFECTION.
   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
 S. 7809                             3
 
 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
   (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.
   § 2. This act shall take effect immediately.