DUANE, HANNON, BRESLIN, FOLEY, C.?JOHNSON, KLEIN, KRUEGER, MONTGOMERY, PARKER, SCHNEIDERMAN, SQUADRON
Amd SS2781, 2135, 2780, 2130, 2782 & 2786, add S2781-a, Pub Health L
Makes provisions relating to HIV testing, including consent for such testing,
required offering for such testing, confidentiality and disclosure.
Department of Health
BILL TEXT: S3293
STATE OF NEW YORK
________________________________________________________________________
3293
2009-2010 Regular Sessions
IN SENATE
March 13, 2009
___________
Introduced by Sens. DUANE, HANNON, BRESLIN, FOLEY, HUNTLEY, C. JOHNSON,
KRUEGER, MONTGOMERY, SCHNEIDERMAN -- (at request of the Department of
Health) -- read twice and ordered printed, and when printed to be
committed to the Committee on Health
AN ACT to amend the public health law, in relation to HIV testing
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 2781 of the public health law, as added by chapter
2 584 of the laws of 1988, paragraph (d) of subdivision 6 as added by
3 chapter 220 of the laws of 1996 and subdivision 7 as added by chapter
4 429 of the laws of 2005, is amended to read as follows:
5 § 2781. HIV related testing. 1. Except as provided in section three
6 thousand one hundred twenty-one of the civil practice law and rules, or
7 unless otherwise specifically authorized or required by a state or
8 federal law, no person shall order the performance of an HIV related
9 test without first [receiving] having received the written, informed
10 consent of the subject of the test who has capacity to consent or, when
11 the subject lacks capacity to consent, of a person authorized pursuant
12 to law to consent to health care for such individual. [A physician or
13 other person authorized pursuant to law to order the performance of an
14 HIV related test shall certify, in the order for the performance of an
15 HIV related test, that informed consent required by this section has
16 been received prior to ordering such test by a laboratory or other
17 facility.]
18 2. Informed consent to [an] HIV related [test] testing shall consist
19 of a statement consenting to HIV related testing signed by the subject
20 of the test who has capacity to consent or, when the subject lacks
21 capacity to consent, by a person authorized pursuant to law to consent
22 to health care for the subject [which includes at least the following:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05622-02-9
S. 3293 2
1 (a) an explanation of the test, including its purpose, the meaning of
2 its results, and the benefits of early diagnosis and medical inter-
3 vention; and
4 (b) an explanation of the procedures to be followed, including that
5 the test is voluntary, that consent may be withdrawn at any time, and a
6 statement advising the subject that anonymous testing is available; and
7 (c) an explanation of the confidentiality protections afforded confi-
8 dential HIV related information under this article, including the
9 circumstances under which and classes of persons to whom disclosure of
10 such information may be required, authorized or permitted under this
11 article or in accordance with other provisions of law or regulation]
12 after the subject or such other person has received the information
13 described in subdivision three of this section.
14 2-a. Where a written consent to HIV related testing is included in a
15 signed general consent to medical care for the subject of the test or in
16 a signed consent to any health care service for the subject of the test,
17 the consent form shall have a clearly marked place adjacent to the
18 signature where the subject of the test, or, when the subject lacks
19 capacity to consent, a person authorized pursuant to law to consent to
20 health care for such individual, shall be given an opportunity to
21 specifically decline in writing HIV related testing on such general
22 consent.
23 2-b. An informed consent for HIV related testing pursuant to this
24 section shall be valid for such testing until such consent is revoked or
25 expires by its terms. Each time that an HIV related test is ordered
26 pursuant to written informed consent in accordance with this section,
27 the physician or other person authorized pursuant to law to order the
28 performance of the HIV related test, or such person's representative,
29 shall orally notify the subject of the test or, when the subject lacks
30 capacity to consent, a person authorized pursuant to law to consent to
31 health care for such individual, that an HIV related test will be
32 conducted at such time, and shall note the notification in the patient's
33 record.
34 3. Prior to the execution of [a] written informed consent, a person
35 ordering the performance of an HIV related test shall provide either
36 directly or through a representative to the subject of an HIV related
37 test or, if the subject lacks capacity to consent, to a person author-
38 ized pursuant to law to consent to health care for the subject, an
39 explanation [of the nature of AIDS and HIV related illness, information
40 about discrimination problems that disclosure of the test result could
41 cause and legal protections against such discrimination, and information
42 about behavior known to pose risks for transmission and contraction of
43 HIV infection.] that:
44 (a) HIV causes AIDS and can be transmitted through sexual activities
45 and needle-sharing, by pregnant women to their fetuses, and through
46 breastfeeding infants;
47 (b) there is treatment for HIV that can help an individual stay heal-
48 thy;
49 (c) individuals with HIV or AIDS can adopt safe practices to protect
50 uninfected and infected people in their lives from becoming infected or
51 multiply infected with HIV;
52 (d) testing is voluntary and can be done anonymously at a public test-
53 ing center;
54 (e) the law protects the confidentiality of HIV related test results;
55 and
S. 3293 3
1 (f) the law prohibits discrimination based on an individual's HIV
2 status and services are available to help with such consequences.
3 Protocols shall be in place to ensure compliance with this section.
4 4. A person authorized pursuant to law to order the performance of an
5 HIV related test shall provide directly or through a representative to
6 the person seeking such test an opportunity to remain anonymous and to
7 provide written, informed consent through use of a coded system with no
8 linking of individual identity to the test request or results. A health
9 care provider who is not authorized by the commissioner to provide HIV
10 related tests on an anonymous basis shall refer a person who requests an
11 anonymous test to a test site which does provide anonymous testing. The
12 provisions of this subdivision shall not apply to a health care provider
13 ordering the performance of an HIV related test on an individual
14 proposed for insurance coverage.
15 5. At the time of communicating the test result to the subject of the
16 test, a person ordering the performance of an HIV related test shall,
17 directly or through a representative:
18 (a) in the case of a test indicating evidence of HIV infection,
19 provide the subject of the test or, if the subject lacks capacity to
20 consent, the person authorized pursuant to law to consent to health care
21 for the subject with counseling or referrals for counseling: [(a)] (i)
22 for coping with the emotional consequences of learning the result; [(b)]
23 (ii) regarding the discrimination problems that disclosure of the result
24 could cause; [(c)] (iii) for behavior change to prevent transmission or
25 contraction of HIV infection; [(d)] (iv) to inform such person of avail-
26 able medical treatments; and [(e)] (v) regarding the [test subject's]
27 need to notify his or her contacts; and
28 (b) in the case of a test not indicating evidence of HIV infection,
29 provide (in a manner which may consist of oral or written reference to
30 information previously provided) the subject of the test, or if the
31 subject lacks capacity to consent, the person authorized pursuant to law
32 to consent to health care for the subject, with information concerning
33 the risks of participating in high risk sexual or needle-sharing behav-
34 ior.
35 5-a. With the consent of the subject of a test indicating evidence of
36 HIV infection or, if the subject lacks capacity to consent, with the
37 consent of the person authorized pursuant to law to consent to health
38 care for the subject, the person who ordered the performance of the HIV
39 related test, or such person's representative, shall provide or arrange
40 with a health care provider for an appointment for follow-up medical
41 care for HIV for such subject.
42 6. The provisions of this section shall not apply to the performance
43 of an HIV related test:
44 (a) by a health care provider or health facility in relation to the
45 procuring, processing, distributing or use of a human body or a human
46 body part, including organs, tissues, eyes, bones, arteries, blood,
47 semen, or other body fluids, for use in medical research or therapy, or
48 for transplantation to individuals provided, however, that where the
49 test results are communicated to the subject, post-test counseling, as
50 described in subdivision five of this section, shall nonetheless be
51 required; or
52 (b) for the purpose of research if the testing is performed in a
53 manner by which the identity of the test subject is not known and may
54 not be retrieved by the researcher; or
55 (c) on a deceased person, when such test is conducted to determine the
56 cause of death or for epidemiological purposes[.]; or
S. 3293 4
1 (d) conducted pursuant to section twenty-five hundred-f of this chap-
2 ter[.]; or
3 (e) in situations involving occupational exposures which create a
4 significant risk of contracting or transmitting HIV infection, as
5 defined in regulations of the department and pursuant to protocols
6 adopted by the department,
7 (i) provided that:
8 (A) the person who is the source of the occupational exposure is
9 deceased, comatose or is determined by his or her attending health care
10 professional to lack mental capacity to consent to an HIV related test
11 and is not reasonably expected to recover in time for the exposed person
12 to receive appropriate medical treatment, as determined by the exposed
13 person's attending health care professional who would order or provide
14 such treatment;
15 (B) there is no person available or reasonably likely to become avail-
16 able who has the legal authority to consent to the HIV related test on
17 behalf of the source person in time for the exposed person to receive
18 appropriate medical treatment; and
19 (C) the exposed person will benefit medically by knowing the source
20 person's HIV test results, as determined by the exposed person's health
21 care professional and documented in the exposed person's medical record;
22 (ii) in which case
23 (A) a provider shall order an anonymous HIV test of the source person;
24 and
25 (B) the results of such anonymous test, but not the identity of the
26 source person, shall be disclosed only to the attending health care
27 professional of the exposed person solely for the purpose of assisting
28 the exposed person in making appropriate decisions regarding post-expo-
29 sure medical treatment; and
30 (C) the results of the test shall not be disclosed to the source
31 person or placed in the source person's medical record.
32 7. In the event that an HIV related test is ordered by a physician or
33 certified nurse practitioner pursuant to the provisions of the education
34 law providing for non-patient specific regimens, then for the purposes
35 of this section the individual administering the test shall be deemed to
36 be the individual ordering the test.
37 § 2. The public health law is amended by adding a new section 2781-a
38 to read as follows:
39 § 2781-a. Required offering of HIV related testing. 1. Every individ-
40 ual between the ages of eighteen and sixty-four years (or younger or
41 older if there is evidence or indication of risk activity) who receives
42 health services as an inpatient or in the emergency department of a
43 general hospital defined in subdivision ten of section twenty-eight
44 hundred one of this chapter or who receives primary care services in an
45 outpatient department of such hospital or in a diagnostic and treatment
46 center licensed under article twenty-eight of this chapter shall be
47 offered an HIV related test unless the health care practitioner provid-
48 ing such services reasonably believes that (a) the individual is being
49 treated for a life threatening emergency; or (b) the individual has
50 previously been offered or has been the subject of an HIV related test
51 (except that a test shall be offered if otherwise indicated); or (c) the
52 individual lacks capacity to consent to an HIV related test.
53 2. As used in this section, "primary care" means the medical fields of
54 family medicine, general pediatrics, primary care, internal medicine,
55 primary care obstetrics, or primary care gynecology, without regard to
56 board certification.
S. 3293 5
1 3. The offering of HIV related testing under this section shall be
2 culturally and linguistically appropriate in accordance with rules and
3 regulations promulgated by the commissioner.
4 4. This section shall not affect the scope of practice of any health
5 care practitioner or diminish any authority or legal or professional
6 obligation of any health care practitioner to offer an HIV related test
7 or to provide services or care for the subject of an HIV related test.
8 § 3. Section 2135 of the public health law, as added by chapter 163 of
9 the laws of 1998, is amended to read as follows:
10 § 2135. Confidentiality. All reports or information secured by the
11 department, municipal health commissioner or district health officer
12 under the provisions of this title shall be confidential except: (a) in
13 so far as is necessary to carry out the provisions of this title; (b)
14 when used in the aggregate, without patient specific identifying infor-
15 mation, in programs approved by the commissioner for the improvement of
16 the quality of medical care provided to persons with HIV/AIDS; or (c)
17 when used within the state or local health department by public health
18 disease programs to assess co-morbidity or completeness of reporting and
19 to direct program needs, in which case patient specific identifying
20 information shall not be disclosed outside the state or local health
21 department.
22 § 4. Subdivision 4 of section 2780 of the public health law, as added
23 by chapter 584 of the laws of 1988, is amended to read as follows:
24 4. "HIV related test or HIV related testing" means any laboratory
25 test, tests or series of tests [for any virus, antibody, antigen or
26 etiologic agent whatsoever thought to cause or to indicate the presence
27 of AIDS] approved for the diagnosis of HIV.
28 § 5. Subdivision 1 of section 2130 of the public health law, as added
29 by chapter 163 of the laws of 1998, is amended to read as follows:
30 1. Every physician or other person authorized by law to order diagnos-
31 tic tests or make a medical diagnosis, or any laboratory performing such
32 tests shall immediately (a) upon [initial] determination that a person
33 is infected with human immunodeficiency virus (HIV), [or] (b) upon
34 [initial] diagnosis that a person is afflicted with the disease known as
35 acquired immune deficiency syndrome (AIDS), [or] (c) upon [initial]
36 diagnosis that a person is afflicted with HIV related illness, and (d)
37 upon periodic monitoring of HIV infection by any laboratory tests report
38 such case or data to the commissioner.
39 § 6. Subdivision 1 of section 2782 of the public health law is amended
40 by adding a new paragraph (q) to read as follows:
41 (q) an executor or an administrator of an estate shall have access to
42 the confidential HIV information of a deceased person as needed to
43 fulfill his or her responsibilities/duties as an executor or administra-
44 tor.
45 § 7. Paragraph (a) of subdivision 5 of section 2782 of the public
46 health law, as added by chapter 584 of the laws of 1988, is amended to
47 read as follows:
48 (a) Whenever disclosure of confidential HIV related information is
49 made pursuant to this article, except for disclosures made pursuant to
50 [paragraph] paragraphs (a), (d) and (i) of subdivision one of this
51 section or paragraph (a) or (e) of subdivision four of this section,
52 such disclosure shall be accompanied or followed by a statement in writ-
53 ing which includes the following or substantially similar language:
54 "This information has been disclosed to you from confidential records
55 which are protected by state law. State law prohibits you from making
56 any further disclosure of this information without the specific written
S. 3293 6
1 consent of the person to whom it pertains, or as otherwise permitted by
2 law. Any unauthorized further disclosure in violation of state law may
3 result in a fine or jail sentence or both. A general authorization for
4 the release of medical or other information is NOT sufficient authori-
5 zation for further disclosure." An oral disclosure shall be accompanied
6 or followed by such a notice within ten days.
7 § 8. Subdivision 1 of section 2786 of the public health law, as added
8 by chapter 584 of the laws of 1988, is amended to read as follows:
9 1. The commissioner shall promulgate rules and regulations concerning
10 implementation of this article for health facilities, health care
11 providers and other persons to whom this article is applicable. The
12 commissioner shall also develop standardized model forms to be used for
13 informed consent for HIV related testing and for the release of confi-
14 dential HIV related information and materials for pre-test counseling as
15 required by subdivision three of section twenty-seven hundred eighty-one
16 of this article, and for post-test counseling as required by subdivision
17 five of section twenty-seven hundred eighty-one of this article.
18 Persons, health facilities and health care providers may use forms for
19 informed consent for HIV related testing, and for the release of confi-
20 dential HIV related information other than those forms developed pursu-
21 ant to this section, provided [that the person, health facility or
22 health care provider doing so receives prior authorization from] they
23 contain information consistent with the standardized model forms devel-
24 oped by the commissioner. All forms developed or [authorized] used
25 pursuant to this section shall be written in a clear and coherent manner
26 using words with common, everyday meanings. The commissioner, in consul-
27 tation with the AIDS institute advisory council, shall promulgate regu-
28 lations to identify those circumstances which create a significant risk
29 of contracting or transmitting HIV infection; provided, however, that
30 such regulations shall not be determinative of any significant risk
31 determined pursuant to paragraph (a) of subdivision four of section
32 twenty-seven hundred eighty-two or section twenty-seven hundred eighty-
33 five of this article.
34 § 9. On or before September 1, 2011 the commissioner of health shall
35 evaluate the impact of this act with respect to the number of persons
36 who are tested for HIV infection and the number of persons who access
37 care and treatment. Such report shall be submitted to the governor and
38 to the chairs of the assembly and senate committees on health.
39 § 10. This act shall take effect September 1, 2009; provided, however,
40 that the commissioner of health is authorized to adopt rules and regu-
41 lations necessary to implement this act prior to such effective date.
SPONSORS MEMO:
NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1
RETRIEVE BILL
BILL NUMBER: S3293
SPONSOR: DUANE??????????????? TITLE OF BILL:
An act to amend the public health law, in relation to HIV testing
PURPOSE:
This bill: (1) revises the informed consent requirements associated with
HIV/AIDS testing, while ensuring that adequate patient protections are
maintained; (2) tailors counseling information based on HIV test
results; (3) updates current testing requirements to reflect medical
advances; (4) and facilitates authorization for testing in the case of
certain occupational exposures to HIV infection.
SUMMARY OF PROVISIONS:
Section 1 of this bill amends Public Health Law (PHL) § 2781 to author-
ize HIV related testing to be part of a signed general consent to
medical care, which would be durable and remain in effect until it is
revoked or expires. Patients will be provided an opportunity to decline
HIV testing, and testing will only be done with full patient consent;
after the patient is provided with pre-test counseling information. In
all instances, a physician will he required to provide oral notification
to the patient whenever an HIV test is performed and this shall be noted
on the patient's medical record.
Section 1 also provides that HIV counseling messages shall be tailored
based on whether the HIV test indicates infection. Counseling with
respect to positive tests will remain consistent with existing law. In
the case of negative results, counseling will emphasize risks associated
with participating in high risk behavior and may be accomplished by oral
or written reference to information previously provided. The bill also
provides that in the case of a positive test for HIV infection, the
person ordering the test must provide or arrange for follow-up medical
care if the patient consents.
Section 1 further provides that in situations involving occupational
exposures that create a significant risk of contracting or transmitting
HIV infection, HIV testing will be allowed in cases where: (1) the
source person is deceased, comatose or unable to provide consent, and
his or her health care provider determines that mental capacity to
consent is not expected to be regained in time for the exposed person to
receive appropriate medical care, as determined by the exposed person's
health care provider; (2) an authorized representative for the source
person is not available or expected to become available in time for the
exposed person to provide appropriate medical care; and (3) the exposed
person would benefit medically by knowing the source person's HIV test
results. In these limited cases, a provider shall order an anonymous HIV
test of the source person and the results of the anonymous test, but hot
the identity of the source person; would be disclosed to the exposed
person's provider, solely for the purpose of making appropriate deci-
sions regarding post-exposure medical treatment. The results of the HIV
test of the source person would not be disclosed to the source person or
placed in the source person's medical record.
Section 1 also eliminates the requirement that a physician certify that
informed consent has been obtained before ordering HIV related testing
by a laboratory or other facility.
Section 2 of the bill adds a new PHL § 2781-a to require that an HIV
related test be offered to every individual between the ages of 18 and
64 years of age (or younger or older if there is evidence of risk activ-
ity) receiving health services as an inpatient or in the emergency
department of a hospital or receiving primary care services in the
outpatient department of a hospital or in a freestanding diagnostic and
treatment center. The HIV related testing must be offered unless the
health care provider believes: (1) the person is being treated for a
life threatening emergency; (2) the individual has been previously
offered or been the subject of an HIV related test (except that a test
shall be offered if otherwise indicated); and (3) the patient lacks
capacity to consent to such testing. Such offering shall be culturally
and linguistically appropriate.
Section 3 of the bill amends PHL § 2135 to authorize the Department of
Health (DOH) to use HIV testing information (in the aggregate without
identifying patient information) for programs approved by the Commis-
sioner of Health (Commissioner) for the improvement of the quality of
medical care provided to individuals with HIV/AIDS. The bill also
permits DOH to share this information with public health disease
programs within DOH or local health departments to access co-morbidity
or completeness of reporting and to direct program needs. Information
will not be shared outside of DOH or the local health departments.
Section 4 of the bill amends PHL § 2780(4) to update the definition of
"HIV related testing" to mean tests approved for the diagnosis of HIV.
Section 5 of the bill amends PHL § 2130(1) to require that data obtained
"upon periodic monitoring of HIV infection" be reported to the Commis-
sioner.
Section 6 of the bill amends PHL § 2782(1) to provide limited access to
confidential HIV information to the executor or administrator of an
estate when needed to fulfill the responsibilities of such a position.
Section 7 of the bill amends PHL § 2782(5)(a) to clarify instances under
which disclosure need not be accompanied by a written statement regard-
ing confidentiality and redisclosure requirements and prohibitions. In
particular, the written statement would no longer have to be provided
for routine disclosures to providers assisting in rendering care or for
disclosures made to health insurers in the day to day course of the
billing process.
Section 8 of the bill amends PHL § 2786(1) to designate the informed
consent forms for HIV related testing and disclosure that must be devel-
oped by the Commissioner as "standardized model" forms and removes the
requirement that providers obtain prior authorization for the use of
alternative consent and release forms, provided that the forms contain
information consistent with the standardized model forms.
Section 9 of the bill provides that on or before September 1, 2011, the
Commissioner must evaluate the impact of the bill with respect to the
number of persons who are tested for HIV infection and the number of
persons who access care and treatment. Such report shall be submitted to
the Governor and to the chairs of the Assembly and Senate Health Commit-
tees.
Section 10 of the bill provides that the bill will be effective on
September 1, 2009, but authorizes the Commissioner to adopt regulations
necessary to implement the bill prior to that date.
EXISTING LAW:
PHL § 2130 requires health care practitioners and laboratories that
determine that a person is infected with HIV or AIDS to report the case
to DOH.
PHL § 2135 requires that any HIV information obtained by DOH or any
municipal health officer must be maintained as confidential, except as
otherwise required by law.
PHL § 2780 defines a number of terms and in particular defines "HIV
related test" as "any laboratory test or series of tests for any virus,
antibody, antigen or etiologic agent whatsoever thought to cause or to
indicate the presence of AIDS."
PHL § 2781 requires written, informed consent before any HIV related
test may be ordered, and a physician or other practitioner must certify
that consent was received before ordering that such test be performed.
The written, informed consent consists of a statement signed by the
subject of the test which explains, among other things, the purpose of
the test and the applicable confidentiality protections. PHL § 2781
further requires that before execution of the written consent, the prac-
titioner or his or her representative must provide an explanation of the
nature of AIDS and HIV related illness; information about discrimination
problems that could arise from disclosure of test results, and informa-
tion about the transmission risks associated with HIV infection. When
test results are communicated, the patient must be provided with coun-
seling or referrals for counseling about matters such as the emotional
consequences of learning the results and the need to change behavior to
prevent transmission of HIV infection. The informed consent requirements
do not apply in certain circumstances, such as when a researcher does
not know the test subject's identity.
PHL § 2782 prohibits persons who obtain confidential HIV related infor-
mation from disclosing such information, with certain exceptions. In
those circumstances when disclosure is authorized, it must be accompa-
nied by a statement advising that further disclosure without consent is
prohibited.
PHL, § 2786 requires the Commissioner to develop forms for informed
consent for HIV related testing and disclosure of confidential related
information.
LEGISLATIVE HISTORY:
All earlier version of this bill, A.11461/S.8722, was introduced in 2008
but did not pass. A.9195/S.6326, which addressed some of the issues
raised in this bill, was introduced in 2007-08 and was passed by the
Assembly in 2007,
STATEMENT IN SUPPORT:
Significant advances in the medical treatment of and testing for
HIV/AIDS have been made in the last two decades. In the early days of
the epidemic (in the 1980s), an HIV/AIDS diagnosis was tantamount to a
death sentence. Today, people with HIV/AIDS are living longer with the
help of new and improved treatments and testing/monitoring. It is vital
to increase HIV/AIDS testing rates so that people with HIV can seek
treatment, earlier and reduce transmission to others, and so that people
without HIV can learn to stay that way. This bill updates New York's
laws to encourage such testing and reflect new medical technologies and
advances.
Recommendations issued by the federal Centers for Disease Control and
Prevention (CDC) in 2006 include a recommendation for routine HIV
screening for patients between the ages of 13 and 64 in all health care
settings, in addition to regular testing for high-risk groups. The bill
incorporates this recommendation, except that routine screening - mean-
ing that the patient will be offered the opportunity to undergo HIV
testing - will be required for patients between 18 and 64 seen in
certain hospital or clinic settings, or for younger or older patients if
there is evidence of behavior that increases the risk of infection.
Expanded screening will increase the number of individuals who are test-
ed for HIV/AIDS.
The CDC also recommends that states eliminate the requirement of a sepa-
rate written informed consent for each HIV test, and instead assume that
a general consent to medical treatment encompasses consent for HIV test-
ing. This bill relaxes current written consent requirements by providing
an option for a durable written general consent that would specifically
include HIV testing, The bill also makes a corresponding technical
change to the law requiring that the Commissioner develop forms to be
used for informed consent purposes. Specifically, the bill designates
such forms as "standardized model" forms, and providers would no longer
need to obtain prior authorization for the use of alternative forms that
contain information consistent with the standardized model forms. Simi-
larly, the bill removes the requirement that physicians confirm that
informed consent has been obtained before ordering HIV related testing.
Currently, the law requires post-test counseling which is the same
regardless of the test's results, This legislation will require that
counseling be tailored based on whether the HIV test indicates
infection. Counseling will remain consistent with existing law with
respect to positive tests. For negative results, counseling will empha-
size risks associated with participating in high risk behavior and may
be accomplished by oral or written reference to information previously
provided.
The bill also requires physicians to report HIV data obtained through
laboratory tests conducted in conjunction with periodic monitoring of
HIV infection, which will enable DOH to monitor the spread of HIV/AIDS
and to target program initiatives. This provision reflects the avail-
ability of data from HIV tests which was not available when the statute
was originally enacted. The bill makes similar technical changes to
various provisions of law to update references to testing in accordance
with newer testing technologies. In addition, the bill protects indi-
viduals who are at risk of acquiring HIV infection due to an occupa-
tional event by permitting HIV testing if consent is not available.
Finally, the bill makes certain appropriate changes to existing confi-
dentiality provisions, first by allowing limited access to confidential
HIV information to the executor or administrator of an estate when need-
ed by such persons to fulfill their responsibilities. Second, under
current law, disclosure of HIV related information must be accompanied
by a written statement regarding confidentiality and redisclosure. It is
appropriate to exempt from these requirements routine disclosures of
information which are made to providers for purposes of treatment and to
third party payers for reimbursement purposes.
BUDGET IMPLICATIONS:
This bill will not have a measurable fiscal impact to the State, HIV
testing and counseling is already a covered benefit in Medicaid managed
care, Family Health Plus and Medicaid fee-for-service. Any additional
administrative demands can be accommodated within existing DOH
resources.
EFFECTIVE DATE:
This bill takes effect on September 1, 2009, but authorizes the Commis-
sioner to adopt regulations prior to that date as necessary to implement
the bill.