§ 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, providing notice by means readily
accessible in multiple languages to the protected individual, 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 individual or
authorized persons. Such 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 individual's record.

2. 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 pursuant to law to consent to health
care for the subject, 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
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 requires that an individual be notified before an
HIV-related test is performed, and that no test shall be performed over
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 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
medications 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
medications 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
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.