Relates to HIV related testing; removes the need for a health care provider to receive a separate written consent for the performance of an HIV related test; requires counseling or referrals for counseling upon the communication of a positive test result.
BILL NUMBER: S4484A
TITLE OF BILL : An act to amend the public health law, in relation to HIV related testing
PURPOSE OR GENERAL IDEA OF BILL :
This bill removes the need for a healthcare provider to receive a separate written consent for the performance of an HIV related test, to provide pretest counseling, and post-test counseling when a negative result is reported. This bill also facilitates authorization for HIV testing in certain circumstances of occupational exposures to HIV infection. It also provides limited access to confidential HIV information to the executor or administrator of an estate when needed to fulfill the responsibilities of such position.
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 communication 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 notification has been provided to the patient, or their representative authorized 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 counseling 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 information 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-morbidity or completeness of reporting and to direct program needs. Information will not be shared outside the department or the local departments 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 monitoring 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.
This legislation implements several significant reforms to New York's HIV testing laws. It tracks key recommendations made to states promulgated 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 statutory 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 counseling and immediate linkage to follow-up care for those testing positive, 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 contracting 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 antiquated, statutory scheme dealing with HIV related testing is not stemming 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 twentieth day.
STATE OF NEW YORK ________________________________________________________________________ S. 4484--A A. 7757--A 2009-2010 Regular Sessions S E N A T E - A S S E M B L Y April 23, 2009 ___________IN SENATE -- Introduced by Sens. HUNTLEY, ADAMS, MONSERRATE, MONTGOMERY, PADAVAN, STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Health -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee IN ASSEMBLY -- Introduced by M. of A. ROBINSON, SPANO, PEOPLES, MAYER- SOHN, WEPRIN, GALEF, ARROYO, CUSICK, LANCMAN, JEFFRIES, PERALTA, SCAR- BOROUGH, ESPAILLAT, PHEFFER, BARRON, BENJAMIN, HOOPER, COOK, PERRY, CASTRO, CAMARA, GANTT, CLARK, TITUS, DenDEKKER, BOYLAND, AUBRY, J. RIVERA, JAFFEE, FIELDS, RAMOS, P. RIVERA, WRIGHT -- Multi-Sponsored by -- M. of A. ABBATE, ALFANO, BACALLES, BARCLAY, BARRA, BENEDETTO, BOYLE, BRADLEY, BROOK-KRASNY, BURLING, BUTLER, CALHOUN, CARROZZA, COLTON, CONTE, DESTITO, DINOWITZ, ENGLEBRIGHT, FITZPATRICK, GABRYSZAK, GIANARIS, GIGLIO, GORDON, HAWLEY, HIKIND, HOYT, KOON, LUPARDO, MAGEE, MAGNARELLI, MAISEL, MARKEY, McDONOUGH, McKEVITT, MENG, MILLER, MORELLE, OAKS, ORTIZ, PAULIN, QUINN, RAIA, REILICH, REILLY, N. RIVERA, RUSSELL, SALADINO, SAYWARD, SKARTADOS, STIRPE, SWEENEY, TEDISCO, THIELE, TOBACCO, WALKER, WEISENBERG, ZEBROWSKI -- read once and referred to the Committee on Health -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the public health law, in relation to HIV related test- ing THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 2781 of the public health law, as added by chapter 584 of the laws of 1988, paragraph (d) of subdivision 6 as added by chapter 220 of the laws of 1996 and subdivision 7 as added by chapter 429 of the laws of 2005, is amended to read as follows:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11228-03-9 S. 4484--A 2 A. 7757--A
S 2781. HIV related testing. 1. (A) Except as provided in section three thousand one hundred twenty-one of the civil practice law and rules, or unless otherwise specifically authorized or required by a state or federal law, no person shall order the performance of an HIV related test without first receiving the
[written,]informed consent of the subject of the test who has capacity to consent or, when the subject lacks capacity to consent, of a person authorized pursuant to law to consent to health care for such individual. A physician or other person authorized pursuant to law to order the performance of an HIV related test shall [certify, in the order for the performance of an HIV related test, that informed consent required by this section has been received]prior to ordering [such]AN HIV RELATED test by a laboratory or other facility, DOCUMENT THE PROVISION OF INFORMED CONSENT AND WHETHER THE SUBJECT OF THE TEST OR PERSON AUTHORIZED PURSUANT TO LAW TO CONSENT TO HEALTH CARE FOR SUCH INDIVIDUAL DECLINED THE OFFER OF AN HIV RELATED TEST. (B) IN THE EVENT THAT THE PERSON ORDERING THE TEST IS ORDERING A RAPID HIV RELATED TEST AND DOES NOT HAVE CAPACITY AT THE SITE OF SUCH TEST TO PERFORM OTHER MEDICAL CARE, SUCH INFORMED CONSENT SHALL BE IN WRITING AND SIGNED BY THE SUBJECT OF THE TEST. 2. (A) Informed consent to an HIV related test shall consist of [a statement signed by the subject of the test who has capacity to consent or, when the subject lacks capacity to consent, by a person authorized pursuant to law to consent to health care for the subject which includes at least the following: (a) an explanation of the test, including its purpose, the meaning of its results, and the benefits of early diagnosis and medical inter- vention; and (b) an explanation of the procedures to be followed, including that the test is voluntary, that consent may be withdrawn at any time, and a statement advising the subject that anonymous testing is available; and (c) an explanation of the confidentiality protections afforded confi- dential HIV related information under this article, including the circumstances under which and classes of persons to whom disclosure of such information may be required, authorized or permitted under this article or in accordance with other provisions of law or regulation. 3. Prior to the execution of a written informed consent, a person ordering the performance of an HIV related test shall provide to the subject of an HIV related test or, if the subject lacks capacity to consent, to a person authorized pursuant to law to consent to health care for the subject, an explanation of the nature of AIDS and HIV related illness, information about discrimination problems that disclo- sure of the test result could cause and legal protections against such discrimination, and information about behavior known to pose risks for transmission and contraction of HIV infection. 4.]INFORMING THE PERSON OF THE PURPOSE OF THE TEST AND ITS MEANS WHILE OFFERING AN OPPORTUNITY FOR QUESTIONS. (B) AN INFORMED CONSENT FOR HIV RELATED TESTING PURSUANT TO THIS SECTION SHALL BE VALID FOR SUCH TESTING UNTIL SUCH CONSENT IS REVOKED OR EXPIRES BY ITS TERMS. EACH TIME THAT AN HIV RELATED TEST IS ORDERED PURSUANT TO INFORMED CONSENT IN ACCORDANCE WITH THIS SECTION, THE PHYSI- CIAN OR OTHER PERSON AUTHORIZED PURSUANT TO LAW TO ORDER THE PERFORMANCE OF THE HIV RELATED TEST, OR SUCH PERSON'S REPRESENTATIVE, SHALL ORALLY NOTIFY THE SUBJECT OF THE TEST OR, WHEN THE SUBJECT LACKS CAPACITY TO CONSENT, A PERSON AUTHORIZED PURSUANT TO LAW TO CONSENT TO HEALTH CARES. 4484--A 3 A. 7757--A
FOR SUCH INDIVIDUAL, THAT AN HIV RELATED TEST WILL BE CONDUCTED AT SUCH TIME, AND SHALL NOTE THE NOTIFICATION IN THE PATIENT'S RECORD. 3. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, NOTHING SHALL PROHIBIT A HEALTH CARE PROVIDER FROM COMBINING A FORM USED TO OBTAIN INFORMED CONSENT FOR HIV RELATED TESTING WITH FORMS USED TO OBTAIN WRITTEN CONSENT FOR GENERAL MEDICAL CARE OR ANY OTHER MEDICAL TEST OR PROCEDURE PROVIDED THAT THE FORMS MAKE IT CLEAR THAT THE SUBJECT OF THE TEST MAY CONSENT TO GENERAL MEDICAL CARE, TESTS OR MEDICAL PROCE- DURES WITHOUT BEING REQUIRED TO CONSENT TO HIV RELATED TESTING AND CLEARLY EXPLAIN HOW THE SUBJECT OF THE TEST MAY OPT OUT OF HIV RELATED TESTING. 4. A person authorized pursuant to law to order the performance of an HIV related test shall provide to the person seeking such test an oppor- tunity to remain anonymous and to provide
[written,]informed consent through use of a coded system with no linking of individual identity to the test request or results. A health care provider who is not author- ized by the commissioner to provide HIV related tests on an anonymous basis shall refer a person who requests an anonymous test to a test site which does provide anonymous testing. The provisions of this subdivision shall not apply to a health care provider ordering the performance of an HIV related test on an individual proposed for insurance coverage. 5. At the time of communicating [the]A POSITIVE test result to the subject of the test, a person ordering the performance of an HIV related test shall provide the subject of the test or, if the subject lacks capacity to consent, the person authorized pursuant to law to consent to health care for the subject, with counseling or referrals for coun- seling [: (a) for coping with the emotional consequences of learning the result; (b) regarding the discrimination problems that disclosure of the result could cause; (c) for behavior change to prevent transmission or contraction of HIV infection; (d) to inform such person of available medical treatments; and (e) regarding the test subject's need to notify his or her contacts], AND WITH THE CONSENT OF THE SUBJECT OF A TEST INDICATING EVIDENCE OF HIV INFECTION OR, IF THE SUBJECT LACKS CAPACITY TO CONSENT, WITH THE CONSENT OF THE PERSON AUTHORIZED PURSUANT TO LAW TO CONSENT TO HEALTH CARE FOR THE SUBJECT, THE PERSON WHO ORDERED THE PERFORMANCE OF THE HIV RELATED TEST, OR SUCH PERSON'S REPRESENTATIVE, SHALL PROVIDE OR ARRANGE WITH A HEALTH CARE PROVIDER FOR AN APPOINTMENT FOR FOLLOW-UP MEDICAL CARE FOR HIV FOR SUCH SUBJECT. 6. The provisions of this section shall not apply to the performance of an HIV related test: (a) by a health care provider or health facility in relation to the procuring, 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 research or therapy, or for transplantation to individuals provided, however, that where the test results are communicated to the subject, post-test counseling, as described in subdivision five of this section, shall nonetheless be required; or (b) for the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher; or (c) on a deceased person, when such test is conducted to determine the cause of death or for epidemiological purposes [.]; OR (d) conducted pursuant to section twenty-five hundred-f of this chap- ter [.]; ORS. 4484--A 4 A. 7757--A
(E) IN SITUATIONS INVOLVING OCCUPATIONAL EXPOSURES WHICH CREATE A SIGNIFICANT RISK OF CONTRACTING OR TRANSMITTING HIV INFECTION, AS DEFINED IN REGULATIONS OF THE DEPARTMENT AND PURSUANT TO PROTOCOLS ADOPTED BY THE DEPARTMENT, PROVIDED THAT: (I) THE PERSON WHO IS THE SOURCE OF THE OCCUPATIONAL EXPOSURE IS DECEASED, COMATOSE OR IS DETERMINED BY HIS OR HER ATTENDING HEALTH CARE PROFESSIONAL TO LACK MENTAL CAPACITY TO CONSENT TO AN HIV RELATED TEST AND IS NOT REASONABLY EXPECTED TO RECOVER IN TIME FOR THE EXPOSED PERSON TO RECEIVE APPROPRIATE MEDICAL TREATMENT, AS DETERMINED BY THE EXPOSED PERSON'S HEALTH CARE PROFESSIONAL WHO WOULD ORDER OR PROVIDE SUCH TREAT- MENT; (II) THERE IS NO PERSON AVAILABLE OR REASONABLY LIKELY TO BECOME AVAILABLE WHO HAS THE LEGAL AUTHORITY TO CONSENT TO THE HIV RELATED TEST ON BEHALF OF THE SOURCE PERSON IN TIME FOR THE EXPOSED PERSON TO RECEIVE APPROPRIATE MEDICAL TREATMENT; AND (III) THE EXPOSED PERSON WILL BENEFIT MEDICALLY BY KNOWING THE SOURCE PERSON'S HIV TEST RESULTS, AS DETERMINED BY THE EXPOSED PERSON'S HEALTH CARE PROFESSIONAL AND DOCUMENTED IN THE EXPOSED PERSON'S MEDICAL RECORD. 7. In the event that an HIV related test is ordered by a physician or certified nurse practitioner pursuant to the provisions of the education law providing for non-patient specific regimens, then for the purposes of this section the individual administering the test shall be deemed to be the individual ordering the test. S 2. The public health law is amended by adding a new section 2781-a to read as follows: S 2781-A. REQUIRED OFFERING OF HIV RELATED TESTING. 1. EVERY INDIVID- UAL BETWEEN THE AGES OF THIRTEEN AND SIXTY-FOUR YEARS (OR YOUNGER OR OLDER IF THERE IS EVIDENCE OR INDICATION OF RISK ACTIVITY) WHO RECEIVES HEALTH SERVICES AS AN INPATIENT OR IN THE EMERGENCY DEPARTMENT OF A GENERAL HOSPITAL DEFINED IN SUBDIVISION TEN OF SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER OR WHO RECEIVES PRIMARY CARE SERVICES IN AN OUTPATIENT DEPARTMENT OF SUCH HOSPITAL OR IN A DIAGNOSTIC AND TREATMENT CENTER LICENSED UNDER ARTICLE TWENTY-EIGHT OF THIS CHAPTER SHALL BE OFFERED AN HIV RELATED TEST UNLESS THE HEALTH CARE PRACTITIONER PROVID- ING SUCH SERVICES REASONABLY BELIEVES THAT (A) THE INDIVIDUAL IS BEING TREATED FOR A LIFE THREATENING EMERGENCY; OR (B) THE INDIVIDUAL HAS PREVIOUSLY BEEN OFFERED OR HAS BEEN THE SUBJECT OF AN HIV RELATED TEST (EXCEPT THAT A TEST SHALL BE OFFERED IF OTHERWISE INDICATED); OR (C) THE INDIVIDUAL LACKS CAPACITY TO CONSENT TO AN HIV RELATED TEST. 2. AS USED IN THIS SECTION, "PRIMARY CARE" MEANS THE MEDICAL FIELDS OF FAMILY MEDICINE, GENERAL PEDIATRICS, PRIMARY CARE, GENERAL INTERNAL MEDICINE, PRIMARY CARE INTERNAL MEDICINE, PRIMARY CARE OBSTETRICS, OR PRIMARY CARE GYNECOLOGY, WITHOUT REGARD TO BOARD CERTIFICATION. 3. THE OFFERING OF HIV RELATED TESTING UNDER THIS SECTION SHALL BE CULTURALLY AND LINGUISTICALLY APPROPRIATE IN ACCORDANCE WITH RULES AND REGULATIONS PROMULGATED BY THE COMMISSIONER. 4. THIS SECTION SHALL NOT AFFECT THE SCOPE OF PRACTICE OF ANY HEALTH CARE PRACTITIONER OR DIMINISH ANY AUTHORITY OR LEGAL OR PROFESSIONAL OBLIGATION OF ANY HEALTH CARE PRACTITIONER TO OFFER AN HIV RELATED TEST OR TO PROVIDE SERVICES OR CARE FOR THE SUBJECT OF AN HIV RELATED TEST. S 3. Section 2135 of the public health law, as added by chapter 163 of the laws of 1998, is amended to read as follows: S 2135. Confidentiality. All reports or information secured by the department, municipal health commissioner or district health officer under the provisions of this title shall be confidential except: (A) in so far as is necessary to carry out the provisions of this title; (B)S. 4484--A 5 A. 7757--A
WHEN USED IN THE AGGREGATE, WITHOUT PATIENT SPECIFIC IDENTIFYING INFOR- MATION, IN PROGRAMS APPROVED BY THE COMMISSIONER FOR THE IMPROVEMENT OF THE QUALITY OF MEDICAL CARE PROVIDED TO PERSONS WITH HIV/AIDS; OR (C) WHEN USED WITHIN THE STATE OR LOCAL HEALTH DEPARTMENT BY PUBLIC HEALTH DISEASE PROGRAMS TO ASSESS CO-MORBIDITY OR COMPLETENESS OF REPORTING AND TO DIRECT PROGRAM NEEDS, IN WHICH CASE PATIENT SPECIFIC IDENTIFYING INFORMATION SHALL NOT BE DISCLOSED OUTSIDE THE STATE OR LOCAL HEALTH DEPARTMENT. S 4. Subdivision 4 of section 2780 of the public health law, as added by chapter 584 of the laws of 1988, is amended to read as follows: 4. "HIV related test OR HIV RELATED TESTING" means any laboratory test, TESTS or series of tests
[for any virus, antibody, antigen or etiologic agent whatsoever thought to cause or to indicate the presence of AIDS]APPROVED FOR OR OTHERWISE ABLE TO MAKE A SPECIFIC DIAGNOSIS OF HIV INFECTION. S 5. Subdivision 1 of section 2130 of the public health law, as added by chapter 163 of the laws of 1998, is amended to read as follows: 1. Every physician or other person authorized by law to order diagnos- tic tests or make a medical diagnosis, or any laboratory performing such tests shall immediately (a) upon [initial]determination that a person is infected with human immunodeficiency virus (HIV), [or](b) upon [initial]diagnosis that a person is afflicted with the disease known as acquired immune deficiency syndrome (AIDS), [or](c) upon [initial]diagnosis that a person is afflicted with HIV related illness, AND (D) UPON PERIODIC MONITORING OF HIV INFECTION BY ANY LABORATORY TESTS report such case OR DATA to the commissioner. S 6. Subdivision 1 of section 2782 of the public health law is amended by adding a new paragraph (q) to read as follows: (Q) AN EXECUTOR OR AN ADMINISTRATOR OF AN ESTATE SHALL HAVE ACCESS TO THE CONFIDENTIAL HIV INFORMATION OF A DECEASED PERSON AS NEEDED TO FULFILL HIS OR HER RESPONSIBILITIES/DUTIES AS AN EXECUTOR OR ADMINISTRA- TOR. S 7. Subdivision 4 of section 2783 of the public health law, as added by chapter 584 of the laws of 1988, is amended to read as follows: 4. Any cause of action to recover damages [based on a failure to provide information, explanations, or counseling prior to the execution of a written informed consent, or]based on a lack of informed consent in the ordering or performance of an HIV related test in violation of this article shall be governed by the provisions of section two thousand eight hundred five-d of this chapter. S 8. Subdivision 1 of section 2786 of the public health law, as added by chapter 584 of the laws of 1988, is amended to read as follows: 1. The commissioner shall promulgate rules and regulations concerning implementation of this article for health facilities, health care providers and other persons to whom this article is applicable. The commissioner shall also develop forms to be used [for informed consent for HIV related testing and]for the release of confidential HIV related information [and materials for pre-test counseling as required by subdi- vision three of section twenty-seven hundred eighty-one of this arti- cle,]and for post-test counseling as required by subdivision five of section twenty-seven hundred eighty-one of this article. Persons, health facilities and health care providers may use forms [for informed consent for HIV related testing, and]for the release of confidential HIV related information other than those forms developed pursuant to this section, provided that the person, health facility or health care provider doing so receives prior authorization from the commissioner.S. 4484--A 6 A. 7757--A
All forms developed or authorized pursuant to this section shall be written in a clear and coherent manner using words with common, everyday meanings. The commissioner, in consultation with the AIDS institute advisory council, shall promulgate regulations to identify those circum- stances which create a significant risk of contracting or transmitting HIV infection; provided, however, that such regulations shall not be determinative of any significant risk determined pursuant to paragraph (a) of subdivision four of section twenty-seven hundred eighty-two or section twenty-seven hundred eighty-five of this article. S 9. Nothing contained in this act shall be construed as authorizing any individual to require any person to have an HIV related test or treatment for HIV/AIDS. S 10. This act shall take effect on the one hundred twentieth day after it shall have become a law.