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A08475 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    December 29, 2023
        Introduced by M. of A. PAULIN -- read once and referred to the Committee
          on Health
        AN  ACT to amend the public health law, in relation to HIV related test-
          ing requirements
          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 amended by chap-
     2  ter 308 of the laws of 2010, subdivisions 1 and 2 as amended by  chapter
     3  502  of  the  laws  of 2016 and subdivision 4 as amended by section 2 of
     4  part A of chapter 60 of the laws of 2014, 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, at a minimum, [orally advising] providing notice  by
    10  means readily accessible in multiple languages to the protected individ-
    11  ual,  or,  when  the  protected  individual lacks capacity to consent, a
    12  person authorized to consent to health care for such individual, that an
    13  HIV-related test is being performed, or over the objection of such indi-
    14  vidual or authorized  persons.  Such  [advisement  and  objection,  when
    15  applicable]  notice  may  be  provided orally, in writing by prominently
    16  displayed signage, by electronic means  or  other  appropriate  form  of
    17  communication. Such notice shall include information that HIV testing is
    18  voluntary.  A refusal of an HIV related test shall be noted in the indi-
    19  vidual's record.
    20    2. [A person ordering the performance of an  HIV  related  test  shall
    21  provide  either  directly or through a representative] Prior to ordering
    22  the test, information shall be provided, either orally or by prominently
    23  displayed signage, by printed materials, by electronic  means  or  other
    24  appropriate  form of communication to the subject of an HIV related test
    25  or, if the subject lacks capacity to consent,  to  a  person  authorized
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 8475                             2
     1  pursuant  to law to consent to health care for the subject, [an explana-
     2  tion] explaining that:
     3    (a)  HIV  causes AIDS and can be transmitted through sexual activities
     4  and needle-sharing, by pregnant women  to  their  fetuses,  and  through
     5  breastfeeding infants;
     6    (b)  there is treatment for HIV that can help an individual stay heal-
     7  thy;
     8    (c) individuals with HIV or AIDS can adopt safe practices  to  protect
     9  uninfected  and infected people in their lives from becoming infected or
    10  multiply infected with HIV;
    11    (d) testing is voluntary and can be done anonymously at a public test-
    12  ing center;
    13    (e) the law protects the confidentiality of HIV related test results;
    14    (f) the law prohibits discrimination  based  on  an  individual's  HIV
    15  status and services are available to help with such consequences; and
    16    (g)  the  law requires that an individual be [advised] notified before
    17  an HIV-related test is performed, and that no test  shall  be  performed
    18  over [his or her] their objection; and
    19    (h)  pre- and post-exposure prophylaxis medications (PrEP and PEP) are
    20  available to protect persons at risk of HIV infection.
    21    Protocols shall be in place to ensure compliance with this section.
    22    4. [A person authorized pursuant to law to order the performance of an
    23  HIV related test shall provide directly or through a  representative  to
    24  the person seeking such test, an opportunity to remain anonymous through
    25  use of a coded system with no linking of individual identity to the test
    26  request or results.] A health care provider who is not authorized by the
    27  commissioner  to  provide  HIV related tests on an anonymous basis shall
    28  refer a person who requests an anonymous test to a test site which  does
    29  provide  anonymous testing. The provisions of this subdivision shall not
    30  apply to a health care provider  ordering  the  performance  of  an  HIV
    31  related test on an individual proposed for insurance coverage.
    32    5.  At the time of communicating the test result to the subject of the
    33  test, a person ordering the performance of an HIV  related  test  shall,
    34  directly or through a representative:
    35    (a)  in  the  case  of  a  test  indicating evidence of HIV infection,
    36  provide the subject of the test or, if the  subject  lacks  capacity  to
    37  consent, the person authorized pursuant to law to consent to health care
    38  for  the  subject  with  counseling or referrals for counseling: (i) for
    39  coping with the emotional consequences  of  learning  the  result;  (ii)
    40  regarding  the  discrimination  problems  that  disclosure of the result
    41  could cause; (iii)  for  behavior  change  to  prevent  transmission  or
    42  contraction  of  HIV  infection; (iv) to inform such person of available
    43  medical treatments; and (v) regarding the need  to  notify  his  or  her
    44  contacts;  and (vi) regarding pre- and post-exposure prophylaxis medica-
    45  tions available to sexual partners to prevent HIV infection.
    46    (b) in the case of a test not indicating evidence  of  HIV  infection,
    47  provide  (in  a manner which may consist of oral or written reference to
    48  information previously provided) the subject of  the  test,  or  if  the
    49  subject lacks capacity to consent, the person authorized pursuant to law
    50  to  consent  to health care for the subject, with information concerning
    51  (i) the risks of participating in high  risk  sexual  or  needle-sharing
    52  behavior;  and (ii) regarding pre- and post-exposure prophylaxis medica-
    53  tions available to prevent HIV infection.
    54    5-a. With the consent of the subject of a test indicating evidence  of
    55  HIV  infection  or,  if  the subject lacks capacity to consent, with the
    56  consent of the person authorized pursuant to law to  consent  to  health

        A. 8475                             3
     1  care  for the subject, the person who ordered the performance of the HIV
     2  related test, or such person's representative, shall provide or  arrange
     3  with  a  health  care  provider for an appointment for follow-up medical
     4  care for HIV for such subject.
     5    6.  The  provisions of this section shall not apply to the performance
     6  of an HIV related test:
     7    (a) by a health care provider or health facility in  relation  to  the
     8  procuring,  processing,  distributing  or use of a human body or a human
     9  body part, including organs,  tissues,  eyes,  bones,  arteries,  blood,
    10  semen,  or other body fluids, for use in medical research or therapy, or
    11  for transplantation to individuals provided,  however,  that  where  the
    12  test  results  are communicated to the subject, post-test counseling, as
    13  described in subdivision five of  this  section,  shall  nonetheless  be
    14  required; or
    15    (b)  for  the  purpose  of  research  if the testing is performed in a
    16  manner by which the identity of the test subject is not  known  and  may
    17  not be retrieved by the researcher; or
    18    (c) on a deceased person, when such test is conducted to determine the
    19  cause of death or for epidemiological purposes; or
    20    (d)  conducted pursuant to section twenty-five hundred-f of this chap-
    21  ter; or
    22    (e) in situations involving  occupational  exposures  which  create  a
    23  significant  risk  of  contracting  or  transmitting  HIV  infection, as
    24  defined in regulations of  the  department  and  pursuant  to  protocols
    25  adopted by the department,
    26    (i) provided that:
    27    (A)  the  person  who  is  the  source of the occupational exposure is
    28  deceased, comatose or is determined by his or her attending health  care
    29  professional  to  lack mental capacity to consent to an HIV related test
    30  and is not reasonably expected to recover in time for the exposed person
    31  to receive appropriate medical treatment, as determined by  the  exposed
    32  person's  attending  health care professional who would order or provide
    33  such treatment;
    34    (B) there is no person available or reasonably likely to become avail-
    35  able who has the legal authority to consent to the HIV related  test  on
    36  behalf  of  the  source person in time for the exposed person to receive
    37  appropriate medical treatment; and
    38    (C) the exposed person will benefit medically by  knowing  the  source
    39  person's  HIV test results, as determined by the exposed person's health
    40  care professional and documented in the exposed person's medical record;
    41    (ii) in which case
    42    (A) a provider shall order an anonymous HIV test of the source person;
    43  and
    44    (B) the results of such anonymous test, but not the  identity  of  the
    45  source  person,  shall  be  disclosed  only to the attending health care
    46  professional of the exposed person solely for the purpose  of  assisting
    47  the  exposed person in making appropriate decisions regarding post-expo-
    48  sure medical treatment; and
    49    (C) the results of the test shall  not  be  disclosed  to  the  source
    50  person or placed in the source person's medical record.
    51    7.  In the event that an HIV related test is ordered by a physician or
    52  certified nurse practitioner pursuant to the provisions of the education
    53  law providing for non-patient specific regimens, then for  the  purposes
    54  of this section the individual administering the test shall be deemed to
    55  be the individual ordering the test.
    56    § 2. This act shall take effect immediately.
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