NEW YORK - ACQUIRED IMMUNODEFICIENCY SYNDROME (AIDS) AND HUMAN IMMUNODEFICIENCY VIRUS (HIV)

1. Must physicians report the diagnosis and the treatment of AIDS or HIV to the State Department of Health (DOH)?

Yes. Physicians must report having attended any person infected with HIV and/or with AIDS immediately, but in no event later than twenty one days after the disease was diagnosed.

Reports should be submitted to the commissioner of health on forms it supplies. Physicians are obligated to report any diagnosis whether or not the patient has previously reported having HIV.

(Public Health Law § 2130, 10 N.Y.C.R.R. § 63.4)

2. What are the consequences of not reporting?

Any person who violates, disobeys or disregards the Public Health Law is liable for a civil penalty not to exceed two thousand dollars for every such violation.

(Public Health Law § 12)

A violation of the Health Care Referral act would also constitute professional medical conduct and subject the licensee to possible disciplinary action.

(Education Law § 6530 (9))

3. May physicians test patients for HIV or AIDS anonymously?

Yes. A professional who is authorized to order an HIV test, such as a physician, or qualified nurse or physician assistant, is required to provide the person seeking such test an opportunity to remain anonymous and to provide a written, informed consent to the test request or results. A professional not authorized to order an anonymous HIV test is required to refer the person requesting such a test to a test site which does provide anonymous testing. Anonymous HIV testing is provided by the New York State Department of Health, by the New York City Department of Health and Mental Hygiene, and by some county health departments.

(Public Health Law § 2781(4); See also http:// http://www.health.state.ny.us/diseases/aids/facts/questions/testing.htm)

4. Must a physician obtain a written informed consent from a patient before testing for HIV?

Yes. However, informed consent is not required 1) for court ordered testing pursuant to C.P.L.R. § 3121; 2) when testing without informed consent is otherwise specifically authorized or required by State or Federal law; 3) for testing related to medical research or therapy, or for transplantation to persons; 4) for the testing of a deceased person; or 5) for comprehensive newborn testing pursuant to Public Health Law § 2500-f.

(10 N.Y.C.R.R. § 63.4)

5. Do physicians have a duty to notify patients of positive test results?

Yes. The physician or other person who orders the test is responsible for ensuring that post-test counseling or referrals, as appropriate, are provided to the person who consented to the test. Post test counseling on referrals shall include specific referral information and shall address the following:

A. coping (emotionally) with the test results;

B. discrimination issues related to employment, housing, public accommodations, health care and social services;

C. information on the ability to release or revoke the release of confidential HIV related information; and

D. information on preventing exposure to or transmission of HIV infection and the availability of medical treatment.

For persons who test positive, post test counseling shall, in addition, provide:

A. that HIV reporting is required by law for the purposes of epidemiologic monitoring of the HIV/AIDS epidemic;

B. that contacts should be notified to prevent transmission, and to allow early access of exposed persons to HIV counseling and testing, health care, and prevention services, and a description of notification options and assistance available to the protected individual;

C. an assessment of the risk of domestic violence in conformance with a domestic violence screening protocol developed by the commissioner pursuant to law;

D. that known contacts, including a known spouse, will be reported and that protected persons will also be requested to cooperate in contact notification efforts of known contacts and may name additional contacts they wish to have notified with the assistance of the provider or authorized public health officials;

E. that the protected individual's name or other information about them is not disclosed to any person during the contact notification process;

F. information on the availability of medical services and the location and telephone numbers of treatment sites, information on the use of HIV chemotherapeutics for prophylaxis and treatment and peer group support, access to prevention services and assistance, if needed, in obtaining any of these services; and

G. a discussion of perinatal transmission.

(10 N.Y.C.R.R. § 63.3(d))

It is advisable for a physician to maintain policies for handling the report of HIV test results including the documentation of all measures taken to solicit pending tests and to contact patients who have a positive result.

6. Do physicians have a duty to warn third parties of a patient's AIDS or HIV infection?

A physician has no duty to notify a patient's "contact", which means a spouse, sexual partner or another person the patient may have exposed to HIV, of the patient's infection. Physicians who plan to notify such patient contacts, who have notified contacts or who are making a referral for partner notification assistance to authorized public health officials must indicate their intention to do so on the reporting form. If the physician or other mandated reporter chooses to conduct notification, the results of those activities, including information specified by the commissioner on forms supplied by the commissioner, or their equivalent, must be forwarded to the appropriate authorized public health official within 60 days of the initial report.

(10 N.Y.C.R.R. § 63.8)

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.