Current through Register Vol. 46, No. 39, September 25, 2024
(a) Staff
of an authorized agency as defined by paragraphs (a) and (b) of section 371 (10) of the Social
Services Law must comply with the following standards relating to access to and
disclosure of confidential HIV related information.
(1) Each authorized agency is responsible for
formulating a written management plan to ensure that required safeguards are
implemented and enforced to restrict the disclosure of confidential HIV related
information concerning children in its care. This management plan must be
available for review by the department and must include:
(i) procedures consistent with section 2782.6
of the Public Health Law to ensure that documents containing confidential HIV
related information are accessible only to an authorized employee or agent of
the authorized agency when disclosure is reasonably necessary for the
supervision, monitoring, administration or provision of services provided by
such agencies. For the purpose of this section, an authorized employee or agent
means an employee or agent who, in the ordinary course of business of the
authorized agency, has access to records relating to the care of, treatment of,
or provision of services to the person; and
(ii) measures to ensure that confidential HIV
related information stored electronically is protected from access by
unauthorized persons; and
(iii) a
plan for training agency staff regarding HIV infection, confidentiality of HIV
related information, and protection of persons at significant risk in
accordance with subdivision (c) of this section.
(2) Such authorized employees or agents must
be provided with a written statement warning of penalties for unauthorized
disclosure as follows: "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."
(3) Redisclosure of
confidential HIV related information by an authorized agency is not permitted
except in a manner consistent with article 27-F of the Public Health Law,
section 373-a of the Social Services Law and section
357.3(b)
of this Title.
(4) Confidential HIV
related information included in the child's health history must be provided to:
(i) another authorized agency to whom the
care of the child is transferred;
(ii) the foster parents who have
responsibility for the child's care;
(iii) the prospective adoptive parents as
defined in section
421.1 of
this Title or adoptive parents of the child;
(iv) the biological parents when the child is
discharged to such parents and such disclosure is authorized by section 2782 of the Public Health Law;
(v) a child discharged to his or her own
care.
(5) Confidential
HIV related information is defined in section
360-8.1
of this Title.
(b)
(1) Foster parents may redisclose
confidential HIV-related information concerning a foster child boarded out or
placed with such parents to persons or entities other than those set forth in
article 27-F of the Public Health Law only:
(i) when redisclosure is for the purpose of
providing care, treatment or supervision of the foster child; or
(ii) upon specific written authorization
signed by the commissioner of the social services district or such
commissioner's designated representative in accordance with article 27-F of the
Public Health Law. Such authorization must be maintained in the child's uniform
case record.
(2) Any
disclosure of confidential HIV-related information by a foster parent, except
as authorized by article 27-F of the Public Health Law, 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."
(c)
Training of Staff. Each authorized responsible for the care of HIV infected
children, and for maintaining the confidentiality of records for such children,
must provide initial training within 90 days of promulgation of these
regulations, and thereafter at least annually, to all staff persons authorized
to have access to any files and records, written or electronic, containing
information on HIV infected children. As new staff with such access are added
to agency personnel, initial training must be provided within 45 days of
employment. Such training must include, but is not limited to:
(1) a review of State law and department
regulations related to confidentiality of HIV information, including, but not
limited to:
(i) the necessity for written
authorization for redisclosure on a case by case assessment;
(ii) the list of specific persons to whom HIV
related information in the child's health history must be provided in
accordance with Social Services Law 373-a and Section
357.3(b)
of this Title; and
(iii) the
provision of the required warning statement of penalties for redisclosure in
accordance with section
405.3(g)(16)
of this Title.
(2) a
review of the agency's written management plan for maintaining security of
records;
(3) information on factors
which constitute significant risk of contracting or transmitting HIV infection
as defined by the State Department of Health regulations 10 NYCRR Part 63.9.
Such factors include the presence of significant risk body substances,
principally blood and semen, and the circumstances which result in transmission
of such substances;
(4) hygienic
measure recommended for the protection of persons caring for an HIV infected
child and for protection of HIV infected children from unnecessary exposure to
additional infections. Such measures include:
(i) standard accepted practices for
cleanliness and infection control;
(ii) the use of preventive barriers where
indicated, specifically if the caretaker's skin has open wounds or abrasions,
or if there is presence of blood; and
(5) current research information concerning
HIV infection which includes, but is not limited to, the evidence that HIV
disease is not transmitted by casual or in ordinary home and family care of
children.
(d) Law
guardian. When requested by a law guardian, an authorized agency must disclose
confidential HIV-related information concerning a foster child to the law
guardian if the law guardian is appointed to represent the foster child
pursuant to the Social Services Law or the Family Court Act and the information
is for the purpose of representing the foster child. A law guardian appointed
to represent a child may redisclose confidential HIV-related information only
with the consent of the child if the child has capacity to consent. If the
child lacks capacity to consent, the law guardian may redisclose confidential
HIV-related information for the sole purpose of representing the
child.
