New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle E - Office of Children and Family Services › Part 164 - Aids Testing And Confidentiality Of Hiv-related Information: Requirements Regarding Testing, Confidentiality And Precautions Concerning The Human Immunodeficiency Virus (hiv) And Acquired Immune Deficiency Syndrome (aids) › Section 164.7 - Confidentiality and disclosure

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
				Access to a youth's confidential HIV-related information shall be strictly
				limited. No flags or other markings on charts, lists on walls, or similar
				public displays shall be used to indicate youths' HIV status. Nothing in these
				regulations shall be construed to limit or enlarge access to that portion of a
				youth's file not containing confidential HIV-related information.
(b) No person who obtains confidential
				HIV-related information in the course of providing any health or social service
				or pursuant to a release of confidential HIV-related information may disclose
				or be compelled to disclose such information, except to the following:
(1) the protected individual or, when the
				protected individual lacks capacity to consent, a person authorized pursuant to
				law to consent to health care for the individual;
(2) any person to whom disclosure is
				authorized pursuant to a release of confidential HIV-related information in
				accordance with the regulations of the Department of Health set forth at 10
				NYCRR section
				63.4(a);
(3) an agent or employee of a health facility
				or health care provider if:
(i) the agent or
				employee is authorized to access medical records;
(ii) the health facility or health care
				provider itself is authorized to obtain the HIV-related information;
				and
(iii) the agent or employee
				provides health care to the protected individual, or maintains or processes
				medical records for billing or reimbursement;
(4) a health care provider or health facility
				when knowledge of the HIV-related information is necessary to provide
				appropriate care or treatment to the protected youth or a child of the
				youth;
(5) a health facility or
				health care provider, in relation to the procurement, 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
				education, research, therapy, or for transplantation to individuals;
(6) health facility staff committees, or
				accreditation or oversight review organizations authorized to access medical
				records, provided that such committees or organizations may only disclose
				confidential HIV-related information:
(i) back
				to the facility or provider of a health or social services;
(ii) to carry out the monitoring, evaluation,
				or service review for which it was obtained; or
(iii) to a Federal, State or local government
				agency for the purposes of and subject to the conditions provided in paragraph
				(19) of this subdivision;
(7) a Federal, State, county or local health
				officer when such disclosure is mandated by Federal or State law;
(8) authorized agencies as defined by Social
				Services Law, section 371 and corporations incorporated or organized to receive
				youth for adoption or foster care, in connection with foster care or adoption
				of a youth. Such agency shall be authorized to redisclose such information only
				pursuant to the provisions of article 27-F of the Public Health Law or in
				accordance with the provisions of section 373-A  of the Social Services
				Law;
(9) third-party reimbursers or
				their agents to the extent necessary to reimburse health care providers,
				including health facilities, for health services, provided that, where
				necessary, an otherwise appropriate authorization for such disclosure has been
				secured by the provider;
(10) an
				insurance institution, for other than the purpose set forth in paragraph (9) of
				this subdivision, provided the insurance institution secures a dated and
				written authorization that indicates that health care providers, health
				facilities, insurance institutions, and other persons are authorized to
				disclose information about the protected individual, the nature of the
				information to be disclosed, the purposes for which the information is to be
				disclosed and which is signed by:
(i) the
				protected individual;
(ii) if the
				protected individual lacks the capacity to consent, such other person
				authorized pursuant to law to consent for such individual; or
(iii) if the protected individual is
				deceased, the beneficiary or claimant for benefits under an insurance policy, a
				health services plan, or an employee welfare benefit plan as authorized in
				article 27-F of the Public Health Law;
(11) any person to whom disclosure is ordered
				by a court of competent jurisdiction pursuant to section 2785  of the Public
				Health Law;
(12) an employee or
				agent of the Division of Parole, Division of Probation and Correctional
				Alternatives, or Commission of Correction, in accordance with regulations
				promulgated by those agencies;
(13)
				a medical director of a local correctional facility in accordance with
				regulations promulgated by the facility operator. Redisclosure by the medical
				director is prohibited except as permitted under Public Health Law, article
				27-F and its implementing regulations;
(14) a physician may disclose the
				confidential HIV-related information during contact notification pursuant to
				Public Health Law, article 27-F;
(15) a physician may, upon the informed
				consent of a youth or, if the youth lacks the capacity to consent, other person
				qualified to give consent on behalf of the youth, disclose confidential
				HIV-related information to a State, county, or local health officer for the
				purpose of reviewing the medical history of a youth to determine the fitness of
				the youth to attend school;
(16)
				confidential HIV-related information may be disclosed to a governmental agency
				or to authorized employees or agents of a governmental agency when the person
				providing health services is regulated by the governmental agency or when the
				governmental agency administers a health or social services program and when
				such employees or agents have access to records in the ordinary course of
				business and when access is reasonably necessary for supervision, monitoring,
				administration or provision of services. Such authorized employees or agents
				may include attorneys authorized by a government agency when access occurs in
				the ordinary course of providing legal services and is reasonably necessary for
				supervision, monitoring, administration or provision of services;
(17) confidential HIV-related information may
				be disclosed to authorized employees or agents of a person providing health
				services when such person is either regulated by a governmental agency or when
				a governmental agency administers a health or social services program, and when
				such employees or agents have access to records in the ordinary course of
				business and when access is reasonably necessary for supervision, monitoring,
				administration or provision of services and when such employee or agent has
				been authorized by the division pursuant to this Part. Such authorized
				employees or agents may include attorneys authorized by persons providing
				health services when access occurs in the ordinary course of providing legal
				services and is reasonably necessary for supervision, monitoring,
				administration or provision of services;
(18) no person to whom confidential
				HIV-related information has been disclosed shall disclose the information to
				another person except as authorized by this Part; provided, however that the
				provisions of this Part shall not apply to the protected youth or a natural
				person who is authorized pursuant to law to consent to health care for the
				protected individual;
(19) nothing
				in this section shall limit a person's or agency's responsibility or authority
				to report, investigate, or redisclose, child protective and adult protective
				services information in accordance with title 6 of article 6 and titles 1 and 2
				of article 9-B of the Social Services Law, or to provide or monitor the
				provision of child and adult protective or preventive services;
(20) confidential HIV-related information
				shall not be disclosed to a health care provider or health care facility if the
				sole purpose of disclosure is infection control when such provider or facility
				is regulated under the Public Health Law and required to implement infection
				control procedures pursuant to Department of Health regulations;
(21) confidential HIV information shall not
				be released pursuant to a subpoena. A court order pursuant to Public Health
				Law, section 2785 is required;
(22)
				where a youth has obtained personal confidential HIV-related information from
				an alternate anonymous testing site, sexually transmitted disease clinic or the
				youth's private physician, the youth may choose not to disclose any information
				to the division. However, all youth must be informed that disclosing such
				information confidentially with selected division staff may help him or her to
				manage the stress associated with HIV infection and also assist in planning for
				appropriate services in the community upon release. The test results will not
				be disclosed to any other person unless the youth, or other person authorized
				to give consent, gives prior written consent, pursuant to section
				164.6 of this Part or unless
				disclosed pursuant to paragraph (23) of this subdivision. Youth must also be
				informed that once a positive test result is disclosed, it will be shared
				confidentially with a limited number of people directly involved with the
				youth's care and planning for care, as set forth below. These people will be
				limited to the following:
(i) the facility's
				medical staff caring for the youth (i.e., physician's assistant, nurse, and the
				supervising physician of the physician's assistant or primary care physician
				serving the youth where the facility lacks other medical staff);
(ii) the facility director or, as applicable,
				the youth's foster parents and the division staff responsible for supervision
				of the youth's foster care case; and
(iii) the director of the division's Bureau
				of Health and Recreation Services;
(23) if, in the judgment of the facility
				health staff and facility director or, as applicable, the division staff
				responsible for supervision of the youth's foster care case, the results must
				be disclosed to additional party(ies), including the youth's parent(s) or
				guardian(s), the facility director or foster care case supervisor shall consult
				with the director of the Bureau of Health and Recreation Services. The director
				of the bureau must concur with the facility director or the division staff
				responsible for supervision of the youth's foster care case, if the information
				is to be disclosed to others not approved by the youth. In such cases the
				criterion used for overriding the youth's objections shall be that further
				disclosure of the information is critically important for the youth's physical
				or mental well-being, and that such benefit may not otherwise be obtained. At
				no time will confidential HIV-related information be disclosed in violation of
				Public Health Law, article 27-F. Any decision or action taken pursuant to this
				paragraph and the basis for such decision or action shall be recorded in the
				youth's medical file;
(24) where a
				youth who has acquired HIV-related information through a division employed
				physician or physician's assistant or through a physician maintained to serve
				division youth, either on a contract or fee-for-service basis, the youth must
				be advised that such information will be disclosed as set forth in paragraphs
				(22) and (23) of this subdivision; and
(25) where such access is necessary in
				furtherance of the duties of the Division's Office of Counsel, confidential
				HIV-related information may be disclosed to the Division's Office of Counsel
				and the New York State Attorney General's office.