Current through Register Vol. 47, No. 12, March 26, 2025
(a) Definitions.
(1) acquired immune deficiency syndrome, as
may be defined from time to time by the Centers for Disease Control of the
United States Public Health Service.
(2) HIV infection means infection with the
human immunodeficiency virus or any other related virus identified as a
probable causative agent of AIDS.
(3) HIV related illness means any illness
that may result from or may be associated with HIV infection.
(4) HIV related test means any laboratory
test or series of tests for any virus, antibody, antigen or etiologic agent
whatsoever thought to cause or to indicate the presence of AIDS.
(5) Confidential HIV related information
means any information, in the possession of a person who provides one or more
health or social services or who obtains the information pursuant to a release
of confidential HIV related information, concerning whether an individual has
been the subject of an HIV related test, or has HIV infection, HIV related
illness or AIDS, or information which identifies or reasonably could identify
an individual as having one or more of such conditions, including information
pertaining to such individual's contacts.
(6) Health or social service means any public
or private care, treatment, clinical laboratory test, counseling or educational
service for adults or children, and acute chronic, custodial, residential,
outpatient, home or other health care provided pursuant to the Public Health
Law or the Social Services Law; public assistance or care as defined in article
one of the Social Services Law; employment-related services, housing services,
foster care, shelter, protective services, day care, or preventive services
provided pursuant to the Social Services Law; services for the mentally
disabled as defined in article one of the Mental Hygiene Law; probation
services, provided pursuant to article twelve of the Executive Law; parole
services, provided pursuant to article twelve-B of the Executive Law;
correctional services, provided pursuant to the Correction Law; and detention
and rehabilitative services provided pursuant to article nineteen-G of the
Executive Law.
(7) Person includes
any natural persons, partnership, association, joint venture, trust, public or
private corporation, or State or local government agency.
(8) Capacity to consent means an individual's
ability, determined without regard to the individual's age, to understand and
appreciate the nature and consequences of a proposed health care service,
treatment or procedure, or of a proposed disclosure of confidential HIV-related
information, as the case may be, and to make an informed decision concerning
the service, treatment, procedure or disclosure.
(b) Applicability. This section applies to
any person who obtains or receives confidential HIV related information in the
course of administering the medical assistance program (MA) and implements
article 27-F of the Public Health Law. Any use or disclosure of such
confidential HIV related information made on or after February 1, 1989 is
subject to the terms of this section.
(c) Standard of use and disclosure.
Confidential HIV related information can be used or disclosed only for a
purpose which is directly connected with the administration of the MA program
and consistent with the limitations of section
2782 of the
Public Health Law relating to persons to whom or entities to which confidential
HIV related information may be disclosed. As applied to this section, such a
purpose may include supervision, monitoring, administration or provision of MA
care, services and supplies. Any adverse case action taken against an applicant
for or recipient of MA must be based solely upon the terms and conditions of
eligibility and the furnishing of care, services and supplies as established by
the Social Services Law and this Title. All social services district officials,
employees and their agents are responsible for ensuring that no discrimination
or abuse occurs against an applicant for or recipient of MA about whom
confidential HIV related information is maintained.
(d) Access to confidential HIV related
information. No social services district official, employee or agent will have
access to confidential HIV related information except as necessary for the
fulfillment of a purpose which is related to an official duty of such official,
employee or agent and is directly connected with the administration of the MA
program.
(e) Redisclosure of
confidential HIV related information. No social services district official,
employee or agent to whom confidential HIV related information has been
disclosed can disclose such information to any other person except as
authorized under subdivisions (c) and (d) of this section.
(f) Disclosure of confidential HIV related
information under legal process. Confidential HIV related information must be
disclosed for purposes of judicial administration only upon service of a court
order for disclosure made pursuant to section
2785 of the
Public Health Law.
(g) Disclosure
of confidential HIV related information pursuant to a release.
(1) Confidential HIV related information may
be disclosed pursuant to a release. A release is a written authorization for
disclosure of confidential HIV related information which satisfies the
following conditions. The release:
(i) is
signed by the person who is the subject of the confidential HIV related
information or, if such person lacks capacity to consent, a person authorized
pursuant to law to consent to health care for the person lacking
capacity;
(ii) is dated and
specifies the time period during which the release is to be effective;
and
(iii) specifies to whom
disclosure is authorized and the purpose for such disclosure.
(2) A general authorization for
release of medical or other information does not satisfy the requirements of
this subdivision and confidential HIV related information cannot be disclosed
in response to a general release.
(h) Statement accompanying disclosure.
(1) Any written disclosure of confidential
HIV related information must be accompanied by a statement in writing which
includes the following or substantially similar language: "This information has
been disclosed to you from confidential records which are protected by State
law. State law prohibits you from making any further disclosure of this
information without the specific written consent of the person to whom it
pertains, or as otherwise permitted by law. Any unauthorized further disclosure
in violation of State law may result in a fine or jail sentence or both. A
general authorization for the release of medical or other information is not
sufficient authorization for further disclosure."
(2) Any oral disclosure of confidential HIV
related information must be accompanied or followed as soon as possible, but no
later than 10 days, by the statement in writing required by paragraph (1) of
this subdivision.
(3) The statement
in writing provided for in paragraph (1) of this subdivision is not required to
accompany or follow a disclosure of confidential HIV related information made
to the person who is the subject of the confidential HIV related information
or, if such person lacks capacity to consent, a person authorized pursuant to
law to consent to health care for the person lacking capacity.
(i) Policy and procedures for
maintaining confidentiality. The department and social services districts must
develop and implement policies and procedures to maintain the confidentiality
of HIV related information. Such policies and procedures must be effectively
communicated to social services officials, employees and agents and must
include, but not be limited to, the following:
(1) responsibilities of staff to safeguard
confidential HIV related information;
(2) procedures for secure record maintenance
of confidential HIV related information, including electronically stored
records; and
(3) procedures for
accessing and disclosure of confidential HIV related information to assure that
only authorized persons gain access to such information for permissible
purposes.
