N.Y. PBH Law § 2781

§ 2781. HIV related testing. 1. Except as provided in section three\nthousand one hundred twenty-one of the civil practice law and rules, or\nunless otherwise specifically authorized or required by a state or\nfederal law, no person shall order the performance of an HIV related\ntest without first, at a minimum, providing notice by means readily\naccessible in multiple languages to the protected individual, or, when\nthe protected individual lacks capacity to consent, a person authorized\nto consent to health care for such individual, that an HIV-related test\nis being performed, or over the objection of such individual or\nauthorized persons. Such notice may be provided orally, in writing by\nprominently displayed signage, by electronic means or other appropriate\nform of communication. Such notice shall include information that HIV\ntesting is voluntary. A refusal of an HIV related test shall be noted in\nthe individual's record.\n 2. Prior to ordering the test, information shall be provided, either\norally or by prominently displayed signage, by printed materials, by\nelectronic means or other appropriate form of communication to the\nsubject of an HIV related test or, if the subject lacks capacity to\nconsent, to a person authorized pursuant to law to consent to health\ncare for the subject, explaining that:\n (a) HIV causes AIDS and can be transmitted through sexual activities\nand needle-sharing, by pregnant women to their fetuses, and through\nbreastfeeding infants;\n (b) there is treatment for HIV that can help an individual stay\nhealthy;\n (c) individuals with HIV or AIDS can adopt safe practices to protect\nuninfected and infected people in their lives from becoming infected or\nmultiply infected with HIV;\n (d) testing is voluntary and can be done anonymously at a public\ntesting center;\n (e) the law protects the confidentiality of HIV related test results;\n (f) the law prohibits discrimination based on an individual's HIV\nstatus and services are available to help with such consequences; and\n (g) the law requires that an individual be notified before an\nHIV-related test is performed, and that no test shall be performed over\ntheir objection; and\n (h) pre- and post-exposure prophylaxis medications (PrEP and PEP) are\navailable to protect persons at risk of HIV infection.\n Protocols shall be in place to ensure compliance with this section.\n 4. A health care provider who is not authorized by the commissioner to\nprovide HIV related tests on an anonymous basis shall refer a person who\nrequests an anonymous test to a test site which does provide anonymous\ntesting. The provisions of this subdivision shall not apply to a health\ncare provider ordering the performance of an HIV related test on an\nindividual proposed for insurance coverage.\n 5
lth care provider who is not authorized by the commissioner to\nprovide HIV related tests on an anonymous basis shall refer a person who\nrequests an anonymous test to a test site which does provide anonymous\ntesting. The provisions of this subdivision shall not apply to a health\ncare provider ordering the performance of an HIV related test on an\nindividual proposed for insurance coverage.\n 5. At the time of communicating the test result to the subject of the\ntest, a person ordering the performance of an HIV related test shall,\ndirectly or through a representative:\n (a) in the case of a test indicating evidence of HIV infection,\nprovide the subject of the test or, if the subject lacks capacity to\nconsent, the person authorized pursuant to law to consent to health care\nfor the subject with counseling or referrals for counseling: (i) for\ncoping with the emotional consequences of learning the result; (ii)\nregarding the discrimination problems that disclosure of the result\ncould cause; (iii) for behavior change to prevent transmission or\ncontraction of HIV infection; (iv) to inform such person of available\nmedical treatments; and (v) regarding the need to notify his or her\ncontacts; and (vi) regarding pre- and post-exposure prophylaxis\nmedications available to sexual partners to prevent HIV infection.\n (b) in the case of a test not indicating evidence of HIV infection,\nprovide (in a manner which may consist of oral or written reference to\ninformation previously provided) the subject of the test, or if the\nsubject lacks capacity to consent, the person authorized pursuant to law\nto consent to health care for the subject, with information concerning\n(i) the risks of participating in high risk sexual or needle-sharing\nbehavior; and (ii) regarding pre- and post-exposure prophylaxis\nmedications available to prevent HIV infection.\n 5-a. With the consent of the subject of a test indicating evidence of\nHIV infection or, if the subject lacks capacity to consent, with the\nconsent of the person authorized pursuant to law to consent to health\ncare for the subject, the person who ordered the performance of the HIV\nrelated test, or such person's representative, shall provide or arrange\nwith a health care provider for an appointment for follow-up medical\ncare for HIV for such subject.\n 6. The provisions of this section shall not apply to the performance\nof an HIV related test:\n (a) by a health care provider or health facility in relation to the\nprocuring, processing, distributing or use of a human body or a human\nbody part, including organs, tissues, eyes, bones, arteries, blood,\nsemen, or other body fluids, for use in medical research or therapy, or\nfor transplantation to individuals provided, however, that where the\ntest results are communicated to the subject, post-test counseling, as\ndescribed in subdivision five of this section, shall nonetheless be\nrequired; or\n (b) for the purpose of research if the testing is performed in a\nmanner by which the identity of the test subject is not known and may\nnot be retrieved by the researcher; or\n (c) on a deceased person, when such test is conducted to determine the\ncause of death or for epidemiological purposes; or\n (d) conducted pursuant to section twenty-five hundred-f of this\nchapter; or\n (e) in situations involving occupational exposures which create a\nsignificant risk of contracting or transmitting HIV infection, as\ndefined in regulations of the department and pursuant to protocols\nadopted by the department,\n (i) provided that:\n (A) the person who is the source of the occupational exposure is\ndeceased, comatose or is determined by his or her attending health care\nprofessional to lack mental capacity to consent to an HIV related test\nand is not reasonably expected to recover in time for the exposed person\nto receive appropriate medical treatment, as determined by the exposed\nperson's attending health care professional who would
rson who is the source of the occupational exposure is\ndeceased, comatose or is determined by his or her attending health care\nprofessional to lack mental capacity to consent to an HIV related test\nand is not reasonably expected to recover in time for the exposed person\nto receive appropriate medical treatment, as determined by the exposed\nperson's attending health care professional who would order or provide\nsuch treatment;\n (B) there is no person available or reasonably likely to become\navailable who has the legal authority to consent to the HIV related test\non behalf of the source person in time for the exposed person to receive\nappropriate medical treatment; and\n (C) the exposed person will benefit medically by knowing the source\nperson's HIV test results, as determined by the exposed person's health\ncare professional and documented in the exposed person's medical record;\n (ii) in which case\n (A) a provider shall order an anonymous HIV test of the source person;\nand\n (B) the results of such anonymous test, but not the identity of the\nsource person, shall be disclosed only to the attending health care\nprofessional of the exposed person solely for the purpose of assisting\nthe exposed person in making appropriate decisions regarding\npost-exposure medical treatment; and\n (C) the results of the test shall not be disclosed to the source\nperson or placed in the source person's medical record.\n 7. In the event that an HIV related test is ordered by a physician or\ncertified nurse practitioner pursuant to the provisions of the education\nlaw providing for non-patient specific regimens, then for the purposes\nof this section the individual administering the test shall be deemed to\nbe the individual ordering the test.\n