2023 New York Laws › PBH - Public Health › Article 27-F - HIV and AIDS Related Information › 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,  orally  advising  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 advisement  and  objection,  when
applicable shall be noted in the individual'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:
(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  advised  before  an
HIV-related 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) 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
(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
behavior.
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.