HIV Testing Rules

New HIV Testing Rules in New York

By: Laurie T. Cohen Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP

The New York State Department of Health (“DOH”) has recently issued additional guidance to physicians, hospitals and other providers on implementing legislation addressing HIV testing which became effective on September 1, 2010. The intent of the legislation is to align HIV testing in New York more closely with the HIV testing recommendations issued by the federal Centers for Disease Control and Prevention, specifically the recommendation for routine HIV screening for patients between the ages of 13 and 64 in all health care settings.

Under the new law, with limited exceptions, HIV testing must be offered to every individual between the ages of 13 and 64 (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 or who receives primary care in a hospital outpatient department, diagnostic and treatment center or from a physician, physician assistant, nurse practitioner or midwife providing primary care. The patient’s written consent must still be obtained prior to testing, except in the case of a rapid HIV test where oral consent is permitted as long as it is documented in the patient’s medical record by the person ordering the test. The written consent requirement has been simplified and may be a simple statement signed by the patient consenting to testing. Alternatively, consent to HIV testing may be included in a general consent to medical care if the consent form contains a clearly marked place for the patient or the patient’s authorized representative to decline the testing.

Prior to seeking patient consent to testing, the patient must also be informed of the following:

    • HIV causes AIDS and can be transmitted through sexual activities, needle sharing, by HIV-infected pregnant women to their infants during pregnancy or delivery, or while breast feeding.
    • There are treatments for HIV/AIDS that can help an individual stay healthy.
    • Individuals with HIV/AIDS can adopt safe practices to protect uninfected from acquiring HIV and infected people from acquiring additional strains of HIV.
    • Testing is voluntary and can be done anonymously at a public testing center.
    • The law protects the confidentiality of HIV test results and other related information.
    • The law prohibits discrimination based on an individual’s HIV status and services are available to help with such consequences.
    • The law allows an individual’s informed consent for HIV related testing to be valid for such testing until such consent is revoked or expires by its terms.

DOH expects that this information will be provided orally or in writing before seeking patient consent for testing.

If a patient receives a positive test result, the health care provider ordering the test is also required to arrange an appointment for follow-up care for such individuals.

The new law eliminates the requirement that a physician certify that informed consent has been obtained before ordering HIV related testing by a laboratory or other facility.

The DOH has prepared a number of sample forms that providers can use to evidence that a test was offered or to obtain written consent. Providers are, however, permitted to develop their own forms as long as the forms contain information consistent with the DOH model forms. Furthermore, providers using their own forms will no longer be required to obtain approval of the DOH to use their own forms.

DOH has posted a list of Frequently Asked Questions along with other background information about the new law. These materials can be accessed at http://www.health.state.ny.us/diseases/aids/testing/hiv_testing_law.htm

Ms. Cohen is a Partner with the Health Law Group at Wilson, Elser, Moskowitz, Edelman & Dicker LLP, in its Albany, New York Office. Ms. Cohen can be reached at Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 677 Broadway, 9th Floor, Albany, New York 12207 or (518) 449-8893.

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HIV Testing Rules