Removes the need for a health care provider to receive a separate written consent for the performance of an HIV related test

Summary of provisions

Section one of the bill amends Section 2781 of the Public Health Law to to remove the requirement of obtaining a test subject's written consent for the performance of an HIV related test; instead, the health care provider must document the provision of informed consent to the test subject and if the offer was declined.

This section also eliminates the current statutorily mandated elements of the pre-test counseling communication between the healthcare provider facilitating the test and the patient or test subject regarding HIV testing, and instead permits healthcare provider to tailor the communi- cation surrounding the provision of informed consent to the specific patient and situation. This section spells out that informed consent shall consist of informing the patient of the purpose of the test, and how it will be done, and affords the patient the opportunity to ask questions of the healthcare provider regarding the testing.

Section 1 also provides that such informed consent will be durable and valid until it is revoked; and that the healthcare provider will orally notify the patient of subsequent HIV tests and document that the notifi- cation has been provided to the patient, or their representative author- ized to consent if the patient lacks capacity to consent.

This section also permits a health care provider to combine a form used to obtain consent for HIV related testing with forms used to obtain consent to general medical care, provided that the form makes clear that the subject may consent to general medical care, tests or procedures without being required to consent to HIV related testing and how the subject can opt out of HIV related testing.

This section provides the patient the opportunity to remain anonymous in the testing process.

Section 1 of the bill also provides for the provision of post-test coun- seling and linkage to follow up care at the time of communicating a

positive test result and eliminates the mandate for post-test counseling upon receipt of a negative test result.

Section 1 further provides that in situations of occupational exposures that create a significant risk of contracting or transmitting HIV infection, HIV testing will be allowed in cases where the source person is deceased, comatose, or unable to provide consent; an authorized representative of the source patient is not available or expected to become available in time for the exposed person to provide appropriate medical care; and the exposed person would benefit medically by knowing the source person's HIV test results.

Section 2 of the bill adds a new Section 2781-a of the Public Health Law to require that an HIV test be offered to every individual between the ages of 13 and 64 years of age (or younger or older if there is evidence of risk activity) receiving health services, in Article 28 facilities, including 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 test must be offered unless the healthcare provider believes the person is being treated for a life threatening emergency, the individual has been previously offered or been the subject of HIV related test (except that a test shall be offered if otherwise indicated), and the patient lacks capacity to consent to such testing. The section also provides that such offering shall be culturally and linguistically appropriate.

Section three of the bill amends Section 2135 of the Public Health Law to authorize the state department of health to use HIV testing informa- tion in the aggregate without patient identifying information for programs approved by the Commissioner of Health for improvement of the quality of medical care provided to individuals with HIV/AIDS. This bill also permits the department to share such information with entities within the department or local departments of health to access co-mor- bidity or completeness of reporting and to direct program needs. Infor- mation will not be shared outside the department or the local depart- ments of health.

Section four of the bill amends Section 2780 of the Public Health Law to update the definition of HIV related testing to mean tests approved for the diagnosis of HIV.

Section five of the bill amends subdivision one of Section 2130 of the Public Health Law to require that data obtained "upon periodic monitor- ing of HIV infection" be reported to the Commissioner of the state Department of Health.

Section 6 of the bill amends subdivision one of Section 2782 to add a new paragraph to provide limited access to confidential HIV information to the executor or administrator of an estate when needed to fulfill the responsibilities of such position.

Section 7 of the bill amends subdivision 4 of Section 2783 of the Public Health Law to make conforming changes to the penalties provisions regarding HIV testing reflecting the elimination of the requirement of obtaining separate written consent and provision of statutorily prescribed pre-test counseling prior to testing and reflects retaining of penalties for failure to provide informed consent prior to and for HIV testing.

Section 8 of the bill amends subdivision 1 of Section 2786 of the Public Health Law to eliminate the need for the commissioner of the state department of health to develop specific forms to be used for informed consent for HIV related testing. It further eliminates the requirement to develop materials for pre-test counseling.

Section 9 of this bill prohibits any individual from requiring any person to have an HIV related test or treatment.

Section 10 of this bill provides that this act shall take effect on the 180th day after it shall have been signed into law.

Justification

This legislation implements several significant reforms to New York's HIV testing laws. It tracks key recommendations made to states promul- gated by the federal Centers for Disease Control and Prevention (CDC) in 2006 that are intended to remove barriers to HIV testing and promote routine HIV testing. The goal is to get people tested in a timely manner and provide those who test positive with appropriate counseling and linkage to follow up care.

New York's current approach to testing is clearly inadequate to meet the needs of our communities and stem the tide of this epidemic. New York has the highest number of HIV/AIDS cases in the country, higher then Los Angeles, Washington, San Francisco and Miami combined. The current stat- utory framework regulating HIV related testing was created at a time when we did not have the advances or protections that we have today. Despite these advances, the HIV epidemic continues and, in fact, is growing in the African - American and Latino communities of New York.

According to Surveillance Data from the Centers for Disease Control, in 2005: half (49%) of all new infections were among blacks; one-fifth (18%) of all new infections were among Latinos; AIDS was the fourth leading cause of death among black men, the third leading cause of death among black women, and the leading killer of black women between 25 and 34; and AIDS was the fourth leading cause of death among Latino men and women.

In total, blacks and Latinos suffer two-thirds (67%) of new infections. In many cases their tests, and therefore their diagnoses, are late, meaning that many of these individuals don't receive an HIV test until after they are terminally ill. These late diagnoses also result in people unwittingly continuing to spread the disease. In fact, the CDC

estimates that 25% of all Americans with HIV are unaware of their status and are unwittingly responsible for between half and two-thirds (54-70%) of all new infections.

This legislation reflects advances in HIV testing technologies, advances in HIV treatment, ensures appropriate and effective informed consent procedures that do not hinder routinization, ensures post-test coun- seling and immediate linkage to follow-up care for those testing posi- tive, and recognizes the urgent need for HIV screening to be routinized in healthcare settings.

In addition, in order to ensure more widespread and readily available HIV testing and expand the number of people being tested, the bill also mirrors the CDC recommendation for routine screening to be conducted of patients between the ages of 13 and 64. Inclusion of language mandating offering of HIV testing in the Article 28 (hospitals, health clinics, and diagnostic/treatment centers) is seen as a means of dramatically expanding the number of people being tested and getting them tested sooner.

The bill also requires that when a positive test is communicated that the patient be provided appropriate counseling and linkage to follow up care; it also addresses situations of occupational exposures. The bill recognizes occupational exposure creates a significant risk of contract- ing or transmitting HIV infection and provides that HIV testing will be allowed in cases where the source person is deceased, comatose, or unable to provide consent; an authorized representative of the source patient is not available or expected to become available in time for the exposed person to provide appropriate medical care; and the exposed person would benefit medically by knowing the source person's HIV test results.

Significant advances in medical treatment of and testing for HIV/AIDS have been made in the two decades since the inception of the epidemic. There is no longer the same stigma associated with such a diagnosis as there was when a positive result on an HIV test was tantamount to a death sentence. New York has to acknowledge the validity of the findings and recommendations of the CDC in promulgating its 2006 recommendations. We must also acknowledge that the current, and some would say anti- quated, statutory scheme dealing with HIV related testing is not stem- ming the tide of the epidemic, particularly in our communities of color. We must seize the opportunity provided us via CDC recommendations and implement policies that will routinize testing, reduce the spread of HIV/AIDS, and ultimately save lives.

Legislative history

New bill

Fiscal implications

None

Effective date

This act shall take effect on the one hundred and twen- tieth day.