N.Y. Public Health Law § 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, 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.