New York Codes, Rules and Regulations › Title 14 - DEPARTMENT OF MENTAL HYGIENE › Chapter XIV - Office for People With Developmental Disabilities › Part 633 - Protection of Individuals Receiving Services in Facilities and Services Operated and/or Certified by OPWDD › Section 633.19 - Confidentiality and protective measures regarding the human immunodeficiency virus (HIV) infection (see glossary) and acquired immune deficiency syndrome (AIDS-see glossary) for a person admitted for service for any party proposed for admission

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
Principles of compliance.
(1) It
				is the policy of OPWDD that any information about anyone applying for services
				or admitted and receiving services, is to be held in confidence. Any
				information obtained or to be disclosed is to be done so with the understanding
				that the information is confidential and is to be maintained exclusively for
				the purposes of program planning and the provision of competent and humane care
				to that individual. While the requirements of this section address the
				particular issues of access to person-specific HIV and AIDS information, it is
				the intent of OPWDD that no such information is to be discussed casually or
				capriciously. Such person-specific information should only be judiciously
				disclosed in accordance with law for the purposes of increasing the
				understanding of other care-givers about a person's needs and then only
				care-givers who have or will have responsibilities in addressing that person's
				needs.
(2) Each agency/facility and
				sponsoring agency for a family care home and its employees, volunteers, and
				contract agents and family care providers shall ensure the confidentiality of
				information in the possession of such agency/facility or sponsoring agency
				concerning whether that person admitted for service or anyone proposed for
				admission has been the subject of an HIV-related test (see glossary); or has
				HIV infection (see glossary), HIV-related illness (see glossary), or AIDS; or
				any information indicating a person's possible exposure to HIV.
(3) No one shall have access to HIV-related
				information (see glossary) unless he or she has access to clinical records in
				the ordinary course of business, has been trained in matters of confidentiality
				and related issues, and access to the HIV-related information is reasonably
				necessary under the following circumstances:
(i) To provide for the appropriate care and
				treatment of a person as described in his or her program plan except when the
				sole purpose of accessing the information is to monitor or limit behaviors that
				could result in significant risk (see glossary) contacts; and the program
				planning team, in consultation with the person, has determined that he or she
				exhibits the capacity and willingness to manage his or her behaviors so that
				the monitoring or limitations are not necessary.
(ii) In connection with an investigation of
				an alleged violation of a person's rights, including discrimination or
				abuse.
(iii) To fulfill a specific
				statutory duty.
(iv) In connection
				with a review of the quality of care rendered by an agency/facility or a family
				care provider.
(v) To determine
				eligibility for services or reimbursement of services by OPWDD or the medical
				assistance program (Medicaid).
(4) Each agency/facility or sponsoring agency
				shall protect the confidentiality of HIV-related information, whether in the
				form of records or computer data, which is maintained by or is transferred to
				authorized parties as defined by paragraph (2) of this subdivision. Employees,
				volunteers and family care providers shall be informed of and provided with the
				following written requirements:
(i)
				HIV-related information shall not be examined, removed or copied by any person
				unless authorized under paragraph (3) of this subdivision, 10 NYCRR Part 63, or
				article 27-F of the Public Health Law.
(ii) HIV-related information shall not be
				disclosed to or discussed with any party unless such party is authorized to
				access such information pursuant to article 27-F of the Public Health Law, 10
				NYCRR 63.5 or paragraph (2) of this subdivision, and there is a need to do
				so.
(iii) The use of markers on the
				face of clinical files, lists posted on walls, or other codes or displays for
				the sole purpose of identifying persons with HIV infection is
				prohibited.
(iv) All disclosures,
				oral or written, except as identified in subparagraph (v) of this paragraph,
				shall be accompanied by this statement:
"This information has been disclosed to you from confidential
				  records which are protected by State law. State law prohibits you from making
				  any further disclosure of this information without the specific written consent
				  of the person to whom it pertains, or as otherwise permitted by law. A general
				  authorization for the release of medical or other information is not sufficient
				  authorization for further disclosure. Any unauthorized further disclosure in
				  violation of State law may result in a fine or jail sentence or both."
(v) All disclosures, oral or
				written, shall be noted in the clinical record except:
(a) Only initial disclosures to insurance
				institutions must be noted.
(b)
				Notation is not required for disclosure to agents or health care providers (see
				glossary) or health care facilities (see glossary) if:
(1) the agent or health care provider is
				authorized to access medical or clinical records;
(2) the health care facility or health care
				provider is authorized to obtain the HIV-related information; and
(3) the agent or health care provider
				provides general or specific health care to the protected individual, or
				maintains or processes medical records for billing or reimbursement.
(c) Notation is not required for
				persons engaged in quality assurance, program monitoring or evaluation, nor for
				governmental agents acting pursuant to contract or law.
(d) Confidential HIV-related information may
				be noted in a certificate of death, autopsy report or related documents
				prepared pursuant to Public Health Law, article 41 or other laws relating to
				documentation of cause of death.
(e) A protected person shall be informed of
				disclosures of HIV information upon request of that person.
(f) Confidential HIV-related information
				shall not be disclosable pursuant to Public Officers Law, article 6 (the
				Freedom of Information Law).
(vi) Violation of these confidentiality
				provisions may lead to disciplinary action, including suspension or dismissal
				from employment, and civil or criminal liability.
(5) Each agency/facility and sponsoring
				agency shall implement and enforce a program that will prevent the transmission
				of HIV infection, should a caregiver be exposed to the virus. Such a program
				shall include requiring sound and appropriate health care practices in the care
				of all persons, including:
(i) training for
				persons being served, staff, volunteers, and family care providers, on the use
				of protective equipment, preventive practices, and circumstances that
				constitute significant risk exposure;
(ii) appropriate training, counseling, and
				supervision of persons regarding behaviors which pose a risk for HIV
				transmission. Contact notification, when appropriate, shall be conducted in
				accordance with Public Health Law, section
				2782(4) and
				10 NYCRR 63.7;
(iii) training, counseling, and supervision
				of persons who may be in high risk sexual or other contact situations with
				others;
(iv) the use of accepted
				protective practices to prevent skin and mucous membrane exposure to blood,
				other body fluids, or other significant risk body substances (see
				glossary);
(v) the use of accepted
				preventive practices while handling instruments or equipment that may cause
				puncture injuries; and
(vi) the
				provision, as appropriate, of personal protective equipment which is of
				appropriate quality and quantity.
(6) Each agency/facility and sponsoring
				agency shall implement and enforce a program for the management of anyone who
				is exposed to blood, other body fluids or other significant risk body
				substances. Such program shall include:
(i) a
				system for voluntarily reporting all exposures thought to represent a
				circumstance for significant risk;
(ii) availability of services for evaluating
				the circumstances of a reported exposure and providing appropriate follow-up of
				anyone who has been exposed, which includes:
(a) medical and epidemiological assessment of
				anyone who is the source of the exposure, where that source is known and
				available;
(b) if epidemiologically
				indicated, HIV counseling and testing of the source as permitted under article
				27-F of the Public Health Law. Where the HIV status is not known to anyone who
				has been exposed, disclosure can be made only with the express written consent
				of the source or pursuant to court order; and
(c) appropriate medical follow-up of anyone
				who has been exposed;
(iii) assurances for protection of
				confidentiality for those involved in reported exposures.
(7) Each agency/facility or sponsoring agency
				shall ensure that no person being served or anyone proposed for services is
				discriminated against, abused or otherwise treated adversely because of his or
				her status as one who is the subject of an HIV-related test, or who is thought
				to be, or who is, HIV infected. Discrimination includes, but is not limited to,
				the denial of appropriate services, isolation or quarantine, or the restriction
				of rights as set forth in this Part, solely because the person or other party
				has or is thought to have HIV infection.