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Significant changes in New York HIV testing law
September 29, 2010
Health Law Alert
Author(s): Michele A. Masucci

As of September 1, 2010, health care providers are required by law to offer HIV testing. Under New York State Public Health Law, HIV testing must be offered, at least once, to all patients between the ages of 13 and 64 receiving either primary care or hospital services. The new law also changes the process for obtaining HIV testing consent. This alert discusses which providers are required to offer HIV testing and the changes to the process for obtaining consent.

By Michele Masucci and Carly Eisenberg

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Providers required to offer HIV testing include:

  • physicians, physician assistants, nurse practitioners, and midwives providing primary care;
  • providers in an inpatient or emergency department of a general hospital; and
  • primary care providers in a hospital outpatient department or diagnostic and treatment center.

Covered providers are not required to offer HIV testing when an individual is being treated for a life threatening emergency, has previously been offered or taken an HIV test, or is decisionally incapacitated and no surrogate, as defined in the Family Health Care Decisions Act, is available to provide consent.

The new law also changes the process for obtaining HIV testing consent. Now, consent may be incorporated into a general medical consent form. The general medical consent form, however, must include specific opt out language for HIV testing. A rapid HIV test does not require written consent, but the oral consent must be noted in the patient’s medical chart. Further, the consent is now durable, ending upon its own stated term or when revoked by the patient, either orally or in writing.

The law also regulates cases of occupational exposure where a source patient is unable to provide consent for HIV testing. If a provider is at significant risk of contracting or transmitting HIV infection, a test may be ordered if:

  • the source patient is deceased, comatose, or his or her treating professional determines a lack of capacity to consent;
  • the source patient is unlikely to recover in time for the exposed individual to receive appropriate medical treatment;
  • there is no person available or likely to become available possessing the legal authority to consent in time for the exposed individual to receive appropriate medical treatment; or
  • the exposed individual will derive a medical benefit from knowing the source patient’s HIV test results.

The provider must order an anonymous test and the results may only be disclosed to the treating professional of the exposed individual to aid in post-exposure treatment. The results may not be released to the source patient or included in the individual’s medical record.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.