Current through Register Vol. 46, No. 12, March 20, 2024
(a) Except
as noted in subdivision (b) of this section, no physician or other person
authorized pursuant to law may order an HIV-related test without first
obtaining written informed consent.
(1)
Informed consent shall include providing pre-test counseling to the person to
be tested or, if such person lacks capacity to consent, to the person lawfully
authorized to consent to health care for such person. Pre-test counseling shall
include:
(i) explanations regarding the
nature of HIV infection and HIV-related illness, an explanation of the
HIV-related test, including a description of the procedure to be followed,
meaning of the test result, and the benefits of taking the test, including
early diagnosis and medical intervention;
(ii) information regarding discrimination
problems which might occur as a result of unauthorized disclosure of
HIV-related information and legal protections prohibiting such
disclosures;
(iii) information on
preventing exposure or transmission of HIV infection, including behavior which
poses a risk of HIV transmission;
(iv) an explanation that the test is
voluntary, that consent may be withdrawn at any time and information on the
availability of anonymous HIV testing, including the location and telephone
numbers of anonymous test sites and that anonymous testing is not available in
the facilities;
(v) written
informed consent must be executed on form HS-1.
(b) Informed consent is not required in the
following situations, but pre- and post-test counseling shall be offered in
situations described in paragraphs (1) and (2) of this subdivision:
(1) for court ordered testing pursuant to
Civil Practice Law and Rules, section 3121;
(2) if otherwise specifically authorized or
required by State or Federal law;
(3) for testing related to procuring,
processing, distributing or use of a human body or human body part, including
organs, tissues, eyes, bones, arteries, blood, semen or other body fluids for
use in medical research or therapy, or for transplantation to persons, provided
that if the test results are communicated to the tested person, post-test
counseling is required;
(4) for
research if the testing is performed in a manner by which the identity of the
test subject is not known and may not be retrieved by the researcher;
(5) for testing of a deceased person to
determine cause of death or for epidemiological purposes.
(c) In addition to an explanation of the test
result, post-test counseling or referrals with respect to a positive test
result, shall be provided to the person who consented to the test. Such
post-test counseling and referrals must address:
(1) coping emotionally with the test
results;
(2) discrimination
issues;
(3) information on the
ability to release or revoke the release of confidential HIV-related
information;
(4) information on
preventing exposure to or transmission of HIV infection and information on
available medical treatment;
(5)
the need to notify contacts to prevent transmission, including information on
State or county assistance in voluntary contact notification, if
appropriate.
(d) When a
negative HIV-related test result is communicated to the individual, counseling
shall be offered discussing:
(1) the meaning
of and limitation of the test result; and
(2) the means to remain free of infection and
means to avoid transmitting the virus.
(e) A physician or other person authorized
pursuant to law to order an HIV-related test shall certify on a laboratory
requisition form that informed consent has been obtained.
