HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/STATE/NEWYORK1.ASC

Text File | 1993-01-14 | 79KB | 1,648 lines

/* NEW YORK statutes deal with home health care; testing;
confidentiality; reporting; insurance; the AIDS Institute; an
advisory panel on infected health care workers; prevention
training; alcoholism and substance abuse; and health insurance
continuation program.  It is presented in two parts. */



 19.01  Declaration of policy

The legislature declares the following:

Alcoholism, substance abuse and chemical dependence pose major
health and social problems for individuals and their families
when left untreated, including family devastation, homelessness,
and unemployment.  It has been proven that successful prevention
and treatment can dramatically reduce costs to the health care,
criminal justice and social welfare systems.

The tragic, cumulative and often fatal consequences of alcoholism
and substance abuse are, however, preventable and treatable
disabilities that require a coordinated and multi-faceted network
of services.

The legislature recognizes locally planned and implemented
prevention as a primary means to avert the onset of alcoholism
and substance abuse. It is the policy of the state to promote
comprehensive, age appropriate education for children and youth
and stimulate public awareness of the risks associated with
alcoholism and substance abuse. Further, the legislature
acknowledges the need for a coordinated state policy for the
establishment of prevention and treatment programs designed to
address the problems of chemical dependency among youth,
including prevention and intervention efforts in school and
community-based programs designed to identify and refer high risk
youth in need of chemical dependency services.

Substantial benefits can be gained through alcoholism and
substance abuse treatment for both addicted individuals and their
families. Positive treatment outcomes that may be generated
through a complete continuum of care offer a cost effective and
comprehensive approach to rehabilitating such individuals.  The
primary goals of the rehabilitation and recovery process are to
restore social, family, lifestyle, vocational and economic
supports by stabilizing an individual's physical and
psychological functioning.  The legislature recognizes the
importance of varying treatment approaches and levels of care
designed to meet each client's needs.  Re lapse prevention and
aftercare are two primary components of treatment that serve to
promote and maintain recovery.

The legislature recognizes that the distinct treatment needs of
special populations, including women and women with children,
persons with HIV infection, persons diagnosed with mental
illness, persons who abuse chemicals, the homeless and veterans
with post traumatic stress disorder, merit particular attention.
It is the intent of the legislature to promote effective
interventions for such populations in need of 'particular
attention.  The legislature also recognizes the importance of
family support for individuals in alcohol or substance abuse
treatment and recovery. Such family participation can provide
lasting support to the recovering individual to prevent relapse
and maintain recovery.  The intergenerational cycle of chemical
dependency within families can be intercepted through appropriate
interventions.

The state of New York and its local governments have a
responsibility in coordinating the delivery of alcoholism and
substance abuse services, through the entire network of service
providers.  To accomplish these objectives, the legislature
declares that the establishment of a single, unified office of
alcoholism and substance abuse services will provide an
integrated framework to plan, oversee and regulate the state's
prevention and treatment network.  In recognition of the growing
trends and incidence of chemical dependency, this consolidation
allows the state to respond to the changing profile of chemical
dependency.  The legislature recognizes that some distinctions
exist between the alcoholism and sub stance abuse field and where
appropriate, those distinctions may be pre served. Accordingly,
it is the intent of the state to establish one office of
alcoholism and substance abuse services in furtherance of a
comprehensive service delivery system.



 230-a.  Infection control standards

Notwithstanding any law to the contrary, including section sixty-
five hundred thirty-two of the education law, the department
shall promulgate rules or regulations describing scientifically
accepted barrier precautions and infection control practices as
standards of professional medical conduct for persons licensed
under articles one hundred thirty-one and one hundred thirty-one
B of the education law. The department shall consult with the
education department to ensure that regulatory standards for
scientifically acceptable barrier precautions and infection
prevention techniques promulgated pursuant to this section are
consistent, as far as appropriate with such standards adopted by
the education department applicable to persons licensed under the
education law other than articles one hundred thirty-one and one
hundred thirty-one B of such law.



 232 HIV prevention training

***

4.   To develop criteria for the selection of students eligible
for health corps scholarships or fellowships under the provisions
of section two hundred thirty-three of this title, including, but
not limited to, the student's academic achievement, previous work
experience in their chosen health profession and a demonstrated
interest in working with institutionalized populations or with
persons infected with the human immunodeficiency virus (HIV) or
who have acquired immunodeficiency syndrome (AIDS) or in a health
care setting eligible pursuant to this title;



 238.  Course work or training in infection control practices

Every physician, physician assistant and specialist assistant
practicing in the state shall, on or before July first, nineteen
hundred ninety-four and every four years thereafter, (a) complete
course work or training, appropriate to the professional's
practice, approved by the department regarding infection control
and barrier precautions, including engineering and work practice
controls, in accordance with regulatory standards promulgated by
the department in consultation with the department of education,
to pre vent the transmission of HIV or HBV in the course of
professional practice and (b) so document to the department,
provided however, that physicians subject to the provisions of
paragraph (f) of subdivision one of section twenty-eight hundred
five k of this chapter shall not be required to report to the
department The department shall provide an exemption from this
requirement to anyone who requests such an exemption and who (i)
clearly demonstrates to the department's satisfaction that there
would be no need for him or her to complete such course work or
training because of the nature of his or her practice or (ii)
that he or she has completed course work or training deemed by
the department to be equivalent to the standards for course work
or training approved by the department pursuant to this section.
The department shall consult with organizations representative of
professions, institutions and those with expertise in infection
control and HIV and HBV with respect to the regulatory standards
promulgated pursuant to this section.



 321.  Medical information exchange centers

(a)  Whenever any insurance company (which is a member of a
medical information exchange center or which otherwise may
transmit medical information in whatever manner to any other
similar facility including but not limited to an electronic data
facility used by two or more insurance companies to determine or
aid in deter-mining the insurability of applicants) requests
medical information -from any applicant for personal insurance,
it shall not transmit, nor be considered to have obtained the
applicant's informed consent to transmit, the information to any
such facility unless such company furnishes such applicant with a
clear and conspicuous notice disclosing:

(1)  a description of such facility and its operations, including
its name, address and telephone number where it may be contacted
to request disclosure of any medical information transmitted to
it;

(2)  the circumstances under which such facility may release such
medical information to other persons; and

(3)  such applicant's rights to request such facility to arrange
disclosure of the nature and substance of any information in its
files pertaining to him, and to seek correction of any
inaccuracies or incompleteness of such information.

(b)  Such notice shall be given to all applicants when any
application for personal insurance is completed.

(c) No such facility shall release, transmit or otherwise
communicate any medical information it may have to any other
person unless such other person shall have in its possession a
written instrument signed by the person who is the subject of
medical information (or by a parent or guardian if such subject
is a minor) specifically naming such facility and authorizing
such other person to obtain such medical information from such
facility,

(d)  No such facility shall maintain information about HIV
related test results pertaining to any individual unless such
test results are included within a general code, which code is
not designated solely for HIV related test results, and
concerning which code no member of such facility may request from
such facility details sufficient to determine whether the code
was used to maintain information about HIV related test results.

For purposes of this subsection, an "HW 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.



 367-e.  Payment for AIDS home care programs

1.   If an AIDS home care program as defined under article thirty-
six of the public health law is provided in the social services
district for which he has authority, the local social services
official, before he authorizes care in a nursing home or
intermediate care facility or before he authorizes home health
services or personal care services for a person eligible to
receive services under this title, shall notify the person in
writing of the provisions of this section.

2.   If a person eligible to receive services under the
provisions of this title desires to remain and is deemed by his
physician able to remain in his own home or the home of a
responsible relative or other responsible adult if the necessary
services are provided, such person or his representative shall so
inform the local social services official.  If an AIDS home care
program as defined under article thirty-six of the public health
law is provided in the social services district for which he has
authority, such official shall authorize an assessment under the
provision of section three thousand six hundred sixteen of the
public health law. If the results of the assessment indicate that
the person can receive the appropriate level of care at home, the
official shall prepare for that person a plan for the provision
of services comparable to those that would be rendered in a
hospital or residential health care facility, as appropriate for
the patient. In developing such plan, the official shall consult
with those persons performing the assessment and shall assure
that such plan is appropriate to the patient's needs and will
result in an efficient use of services. The services shall be
provided by a long term home health care program authorized by
the commissioner of health under article thirty-six of the public
health law to provide an AIDS home care program.

3.   The commissioner shall apply for any waivers, including home
and community based services waivers pursuant to section nineteen
hundred fifteen-c of the social security act, necessary to
implement AIDS home care programs. Notwithstanding any incon
sistent provision of law but subject to expenditure limitations
of this section, the commissioner, subject to the approval of the
state director of the budget, may authorize the utilization of
medical assistance funds to pay for services provided by AIDS
home care programs in addition to those services included in the
medical assistance program under section three hundred sixty-five-
a of this chapter, 50 long as federal financial participation is
available for such services. Expenditures made under this
subdivision shall be deemed payments for medical assistance for
needy persons and shall be subject to reimbursement by the state
in accordance with the provisions of section three hundred sixty-
eight-a of this chapter.

4.   No social services district shall make payment for a person
receiving an AIDS home care program while payments are being made
for that person for inpatient care in a residential health care
facility or hospital.

5.   The commissioner, together with the commissioner of health,
shall submit a report to the governor, president pro tem of the
senate and the speaker of the assembly by July first, nineteen
hundred ninety and each subsequent year thereafter on the imple
mentation of this section. Such report shall include a statement
of the scope and status of the AIDS crisis in New York state, the
development and implementation of the AIDS home care programs,
the adequacy of care delivered by such programs, the extent to
which such programs have affected use of institutional care
services by AIDS patients, the costs associated with such
programs, the adequacy of reimbursement provided such programs,
any recommendations for legislative action and other such matters
as may be pertinent.

6.   This section shall be effective if, and as long as, federal
financial participation is available.



 367-f. Long term care security demonstration program for long
term care

1.   The commissioner, in consultation with the commissioner of
health, the superintendent of insurance and the director of the
state office for the aging and subject to the approval of the
director of the budget, is authorized to establish a long term
care security demonstration program for long term care.  The
commissioner may establish income and resources tests for
eligibility for benefits under the program.

2.   The commissioner shall apply for any necessary waivers pur
suant to subdivision (2) of section 1915 of the federal social
security act  necessary to implement this section.  Utilization
of medical assistance funds to pay for care and services to
persons pursuant to this section shall be provided so long as
federal financial participation is available for such care and
services.

3.   Notwithstanding any inconsistent provision of law, the long
term care security demonstration program established pursuant to
subdivision one of this section may provide that a person whose
income and resources exceed the limits provided in subdivision
two of section three hundred sixty-six of this title may be
eligible for long term care services under the medical assistance
program in accordance with this subdivision if such person: (i)
is covered by an insurance plan providing long term care services
which meets the minimum benefit standards established pursuant to
section three thousand two hundred twenty-nine of the insurance
law and which is approved by the superintendent of insurance, in
consultation with the commissioners of health and social services
and the director of the state office for the aging, and (ii) has
exhausted all coverage and benefits provided by such plan
provided, however, that the commissioner may provide for
assistance with deductibles prior to exhaustion of all coverage
and benefits provided under such plan for persons eligible under
this section. For the purposes of this section, long term care
services shall include, but not be limited to, care, treatment,
maintenance, and services provided in a residential health care
facility qualified as a provider in the medicare program pursuant
to title XVIII of the federal social security act or provided by
a home care services agency, certified home health agency or long
term home health care program, as defined in section thirty-six
hundred two of the public health law or a personal care provider
licensed or regulated by any other state or local agency.
Provided further, however, the state shall not utilize any
medical assistance funds to pay for any insurance plans providing
long term care services to eligible persons pursuant to this
section written five years after the effective date of this
section. Medical assistance funds shall continue to be available
for any existing insurance plans providing long term care
services to eligible per sons pursuant to this section regardless
of whether the provisions of such section remain in effect.

4.   Notwithstanding any inconsistent provision of law, rates of
payment under the medical assistance program for long term care
services after the exhaustion of all coverage and benefits
provided by an insurance plan described in subdivision two of
this section shall be reduced in accordance with regulations of
the department, promulgated in consultation with the commissioner
of health and the director of the state office for the aging, by
an amount which the provider of such long term care services may
charge the eligible individual.

5.   No demonstration program authorized by this section shall be
undertaken unless the commissioner reasonably estimates that the
aggregate state expenditures under the program would be less than
without the program and the director of the budget approves such
program.

6.   The department shall submit an annual report no later than
January first of each year beginning January first, nineteen hun
dred ninety-one. Such report shall include a description and the
number of policies issued and an analysis of the cost
effectiveness of the program authorized pursuant to this section.



 367-o.  Instruments for home care assessment [Eff. until July 1,
1994.]

1.   The commissioner and the commissioner of health, shall
establish and may periodically revise instruments for home care
Screening, referral, assessment, eligibility determination, and
discharge, which shall be used by certified home health agencies,
Providers of long term home health care programs, providers of
AIDS home care programs, providers of private duty nursing, and
Providers of personal care services to determine a recipient's
eligibility for and the nature and amount of such services to be
provided to the recipient. Such instrument shall:

(a)  allow for use by hospital discharge planners that portion of
the instrument necessary to direct a hospitalized recipient into
the home care program which is expected to meet their assessed
needs most appropriately and cost-effectively; and to the extent
possible and appropriate, direct

(i)  to a certified home health agency recipients who require
therapeutic and/or skilled services and/or require clinical
management;

(ii) to a long term home health care program, if such program is
available in their area, recipients who are expected to require
care over an extended period and whose condition meets criteria
for medical eligibility in a residential health care facility,
whose condition requires services beyond care and nurse
monitoring, or whose condition is determined to be medically
unstable;

(iii) to a personal care services program recipients whose condi
tion is determined to be medically stable; and

(iv) to a hospice available within their area recipients for whom
it is not medically contraindicated and if desired by the
recipient;

(b)  assess the patient's characteristics and service needs,
including health, social and environmental needs and whether home
care services are appropriate and can be safely provided to the
recipient, and shall be used to refer recipients to the home care
program which most appropriately and cost effectively meets their
needs, or other long term care service which is deemed
appropriate for the recipient;

(c)  confirm the recipient's eligibility for the program to which
the recipient has been referred or direct the recipient to the
home care program which most appropriately and cost- effectively
meets his or her needs;

(d)  consider factors that include but are not limited to the
following: the recipient's ability to perform activities of daily
living, the recipient's mental and physical ability to direct his
or her own care and to summon assistance, the recipient's health
and rehabilitation needs, as well as the availability,
willingness and ability of others to provide care.  When it is
determined that the recipient is not physically or mentally able
to direct their own care or to summon assistance, the instrument
shall consider whether the recipient has someone who is
available, able and willing to make decisions on behalf of the
recipient;

(e)  specify the maximum number of hours per month, or the
equivalent thereof, which will be paid for under the medical
assistance program provided, however that the recipient's health
and safety will not be jeopardized;

(f)  serve as a basis for the plan of care and consider the
relationship between all the services provided by the home care
providers to which the recipient is referred, all other home care
services available in the area as defined in this subdivision,
the availability of informal supports to provide care, the
sources of support suggested by the recipient or the recipient's
representative and potential for medicare coverage of recipient
care needs;

(g)  not apply to a recipient requiring care for sixty continuous
days or less; and

(h)  be used directly by certified home health agencies, long
term home health care programs, or, if personal care services are
appropriate. by the social services district or its designee,
which may include an agency under contract with the social
services district to provide personal care services or a
certified home health agency, under conditions specified by the
department

2.   The instruments established, or revised, pursuant to subdivi
sion one of this section shall be employed for the following
categories of recipients and such services shall not be
authorized for more than the maximum hours of service per month,
or the equivalent thereof, per recipient, based on such
instrument regardless of the number of monthly service hours, or
their equivalent, if any, currently authorized for a recipient:

(a)  recipients who initially are authorized for such services on
or after July first, nineteen hundred ninety-two;

(b)  all recipients, upon the periodic reassessment of their care
plan; and

(c)  recipients who currently receive more than one hundred fifty-
six hours, or its equivalent, of such services per month;
provided, however, that the department shall require the
reassessment of such recipients utilizing the instrument; notify
such recipients of the required reassessment, as determined by
the department; and limit payments for such services to the
equivalent of one hundred fifty-six hours per month for those
recipients who fail to comply with such reassessment requirement
until such recipients are reassessed provided, however, the
recipients' health and safety is not jeopardized.

3.   Notwithstanding subdivision two of this section, any maximum
hours per month limitations imposed as a result of use of the
assessment instrument shall not apply with respect to recipients
of long term home health care program services.

4.   The provisions of this section shall not apply to
individuals receiving services authorized under subdivisions six
and seven of section three hundred sixty-six of this chapter.



TITLE 11-B HEALTH INSURANCE CONTINUATION PROGRAM-FOR PERSONS WITH
AIDS

Section

369-k.    Definitions.

369-1.    Establishment of program.

369-m.    Program eligibility and operations.

369-n.    Relationship of program to medical assistance program.



 369-k.  Definitions

As used in this section:

1.   "Health insurance" shall mean insurance or an employee
benefit plan against sickness, ailment or bodily injury of the em
ployee and, if covered, his or her dependents, other than (i)
insurance or an employee benefit plan providing disability
benefits; or (ii) medical assistance benefits received under
title eleven of this article.

2.   "Health insurance costs" means the premiums or contributions
paid for health insurance by or on behalf of a person with AIDS.

3.   "Household" means the person with AIDS and all other persons
residing in the same dwelling for whom such person would be
responsible pursuant to section one hundred one of this chapter,
or for whom such person has assumed responsibility.

4.   "Persons with AIDS" means persons who are diagnosed as
having acquired immune deficiency syndrome (AIDS) or who have
human immunodeficiency virus (HIV)-related illness, as defined in
regulation by the state department of health.

5.   "Poverty line" means the federal income official poverty
line (as defined and annually revised by the federal office of
management and budget).

6.   "Program means the health insurance continuation program for
persons with AIDS established by section three hundred sixty-nine-
l of this article.



 369-1.  Establishment of program

1.   There is hereby established within the department of social
services the health insurance continuation program for persons
with AIDS.

2.   Notwithstanding any inconsistent provision of law, the com
missioner, subject to the approval of the director of the budget,
may apply for appropriate waivers under federal law and
regulation or take other actions to secure federal financial
participation in the costs of the program; may waive or modify
any provisions of this chapter or regulation of the department to
implement this title; or may promulgate such regulations as
necessary to implement this title.



 369-m.  Program eligibility and operations

1.   In accordance with regulations of the commissioner, a social
services district shall pay all or part of the health insurance
costs on behalf of a person with AIDS who:

(a)  is unemployed, or, if employed, currently is ineligible to
participate in health insurance through his or her current
employer or such employer offers no such plan; and

(b)  participated in the plan of health insurance provided by his
or her prior employer and is eligible to continue or convert his
or her participation in such plan by assuming the health
insurance costs associated with such plan although no longer
employed by such employer; and

(c)  resides in a household whose household income is less than
or equal to one hundred eighty-five percent of the poverty line.

2.   For purposes of determining eligibility under this title,
household income shall be determined by use of the same
methodology used to determine eligibility for federal
supplemental security income benefits, provided that costs
incurred for medical or remedial care shall not be taken into
account in determining household income; and, provided further,
that any resources available to such household shall not be
considered nor required to be applied to the payment of health
care expenses.



 369-n. Relationship of program to medical assistance program

1.   Any person eligible for medical assistance benefits under
title eleven of this article or who would be eligible for such
benefits if an application were to be made pursuant to section
three hundred sixty-six of this article shall not be eligible for
the payment of all or part of such person's health insurance
costs under this program. If all members of a household can
establish eligibility for medical assistance benefits under the
excess income program by use of paid or incurred bills, no person
in that household shall be eligible for the payment of all or
part of such person's health insurance costs under this program.

2.   Notwithstanding any inconsistent provision of law, expendi
tures incurred by social services districts under this title
related to program expenses shall be considered expenditures
under the program of medical assistance for needy persons under
title eleven of this article and there shall be paid to each such
district fifty percent of the amount expended by such district
under this title, and for the administration thereof, after first
deducting therefrom any federal funds properly received or to be
received on account thereof.





 2611.  HIV written Informed consent

(a)  No insurer or its designee shall request or require an
individual proposed for insurance coverage to he the subject of
an HIV related test without receiving the written informed
consent of such individual prior to such testing and without
providing general information about AIDS and the transmission of
HIV infection.

(b)  Written informed consent to an HIV related test shall
consist of a written authorization that is dated and includes at
least the following:

(1)  a general description of the test;

(2)  a statement of the purpose of the test;

(3)  a statement that a positive test result is an indication
that the individual may develop AIDS and may wish to consider
further independent testing;

(4)  a statement that the individual may identify on the
authorization form the person to whom the specific test results
may he disclosed in the event of an adverse underwriting
decision, which person may he the individual or a physician or
other designee at the discretion of the individual proposed for
insurance;

(5)  the department of health's statewide toll-free telephone
number that may he called for further information about AIDS, the
meaning of HIV related test results, and the availability and
location of HIV related counseling services; and

(6)  the signature of the applicant or individual proposed for
insurance, or if such individual lacks capacity to consent, the
signature of such other person authorized to consent for such
individual.

(c) In the event that an insurer's adverse underwriting decision
is based in whole or in part on the result of an HIV related
test, the insurer shall notify the individual of the adverse
underwriting decision and ask the individual to elect in writing,
unless the individual has already done so, whether to have the
specific HIV related test results disclosed directly to the
individual or to such other person as the individual may
designate. If the individual elects to receive the HIV related
test results directly, the insurer shall advise the individual
that he or she may call the department of health's statewide toll-
free telephone number for further information about AIDS, the
meaning of HIV related test results, and the availability and
location of HIV related counseling services and shall also advise
such individual to consult with a physician about the meaning of
and need for counseling, where appropriate, as to the HIV related
test results.

(d)  As used in this section, the following terms shall have the
following meanings:

(1)  "Adverse underwriting decision" means:

(A)  a declination of insurance coverage as applied for; or

(B)  an offer to issue insurance coverage at a higher than
standard rate.

(2)  "AIDS" means 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.

(3)  "HIV infection" means infection with the human
immunodeficiency virus or any other related virus identified as a
probable causative agent of AIDS.

(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.

(e)  Any person who violates this section shall be subject to the
provisions of article twenty-four of this chapter.

(f)  Nothing in this section shall be construed to create,
impair, alter, limit, modify, enlarge, abrogate or restrict the
specific authority of the department to allow or prohibit the use
of HIV related tests or the consideration of HIV related test
results for insurance coverage purposes.



ARTICLE 27-DD---STATE ADVISORY PANEL ON HIV/HBV INFECTED HEALTH
CARE WORKERS

 2760.  Advisory panel established.

1.   A state advisory panel for the evaluation of health care
workers with human immunodeficiency virus (HIV) or hepatitis B
(HBV) (hereinafter referred to in this article as HIV/HBV) is
hereby established in the department  This panel shall be known
as the health care worker HIV / HBV advisory panel and shall be
composed of three to five members. The commissioner shall appoint
three members for the term of two years: a state or local public
health officer, an infectious disease expert and an expert in
infection control or epidemiology.  For the purpose of the
panel's deliberations on a specific case: (a) the commissioner
may appoint a health professional with expertise relevant to
procedures performed by the health care worker, provided,
however, that the commissioner shall appoint such professional if
the health care worker so requests; and (b) the commissioner
shall, at the health care worker's request, appoint the health
care worker's personal physician. The commissioner shall appoint
the chairperson of the panel. A vacancy occurring during a term
shall be filled by appointment by the commissioner for the
unexpired term.  Any member may be removed from the panel at the
pleasure of the commissioner.

2.   Each member of the panel shall receive up to one hundred
fifty dollars as prescribed by the commissioner for each day
devoted to panel work not to exceed forty-five hundred dollars in
any one year, and shall be reimbursed for actual and necessary
expenses incurred in the performance of his/her duties.

3.   The department shall advise the panel members of statutory
and regulatory confidentiality provisions and restrictions on
disclosure of information which are applicable to the panel
members and to panel operations.



 2761.  Function, powers and duties

1.   The health care worker HIV/HBV advisory panel shall only
evaluate and advise an HIV/HBV infected health care worker who
voluntarily seeks the panel's review of the risk of HIV/HBV
transmission to others through his/her workplace practice.  Prior
to the panel's evaluation of the worker, the panel must, fully
advise the worker of the panel's authority to investigate, to
recommend practice restrictions or modifications, to advise
facilities of such restrictions and to refer cases to
professional licensing, registration and certification boards. If
the health care worker is affiliated with or employed at a
facility licensed by the department, the panel may evaluate and
advise the worker only after such facility has completed its
review of the scope of practice of the worker. This institutional
review may be conducted through the facility's existing quality
assurance program as required under section twenty-eight hundred
five-j of this chapter, and need not require the creation of a
separate facility HIV/HBV panel. Notwithstanding any other
provision of law, rule or regulation, the panel may request and
shall be entitled to receive patient records and other documents
or information reasonably necessary for and relevant to the
panel's deliberations and implementation of this article
including information and reports available to the department
under section twenty-eight hundred five-m of this chapter,
provided that the panel may only request records with patient
names if essential to the panel's complete review of the case and
provided further that employees of the department, other than the
panel, shall redact patient names before panel review of such
records. Any such information and reports provided to the panel
that are subject to section two thousand eight hundred five-m of
this chapter shall remain subject to the limitations on
disclosure provided by such section. The panel may seek the
advice of professionals with relevant expertise. The panel shall
give the health care worker an opportunity to meet with the
panel. The health care worker may be accompanied by a union or
other representative at such meeting. Only when evidence
indicates that the health care worker's practice poses a
significant risk of harm to patients, the panel shall appropriate
recommendations that are at least restrictive with respect to the
health care worker's practice including, but not limited to,
training or monitoring, or, if necessary, reassignment or
practice restrictions.

2.   The panel shall evaluate an HIV/HBV infected health care
worker pursuant to comprehensive medical criteria, including:

(a)  physical or mental condition that interferes with or is
significantly likely to interfere with the worker's ability to
perform assigned tasks or regular duties;

(b)  lack of compliance with established guidelines to prevent
transmission of disease and/or documentation or evidence of
previous transmission of bloodborne pathogens;

(c)  the appropriateness of techniques as related to performance
of procedures; and

(d)  any health condition that would pose a significant risk to
others.

3.   When the panel recommends training, monitoring,
reassignment, any similar action, or practice restrictions, the
health care worker shall provide written assurance to the panel
that he/she has informed facilities licensed by the department
where the worker provides patient care of the panel's
recommendations and shall identify the person or persons at the
facilities so informed. If the health care worker fails to inform
facilities licensed by the department where he/she provides
patient care of the panel's recommendations, the panel shall so
notify such facilities.  If the health care worker fails to
comply with the panel's recommendations or compliance cannot be
determined by the panel after reasonable effort, the panel shall
disclose the nature of its recommendations to the professional
licensing, registration or certification boards relevant to the
health care worker. The panel may periodically monitor and
reevaluate the worker, with the worker s consent, at a frequency
and through a mechanism to be determined by agreement between the
worker and the panel.

4.   The information received by the panel, the record of
deliberations of the panel, and the decisions of the panel are
not disclosable pursuant to article six of the public officers
law.  If the health care worker fails to comply with the
recommendations of the panel or compliance cannot be determined
by the panel after reasonable effort, information held by the
panel, the panel's deliberations and recommendations may be
disclosed to and utilized by the office of professional medical
conduct, the office of professional discipline and appropriate
disciplinary bodies.  The meetings of the panel are not subject
to article seven of the public officers law. The members of the
panel are bound by article six-A of the public officers law
(personal privacy protection law).

5.   A health care worker's petition to the panel shall not
prevent or preclude the worker from seeking relief in any other
forum at any time.

6.   The commissioner may promulgate regulations implementing
this article.



ARTICLE 27-THE ACQUIRED IMMUNE DEFICIENCY SYNDROME INSTITUTE

 2775.  The acquired immune deficiency syndrome institute

1.   There is hereby established within the department 9f health
the acquired immune deficiency syndrome institute.  The institute
shall have the central responsibility for administering the
provisions of this article and otherwise coordinating the state's
policies with respect to acquired immune deficiency syndrome.

2.   The commissioner shall appoint a director of the institute
and may assign such personnel within the amounts appropriated as
is necessary to carry out the provisions of this article.



 2776.  Powers and duties

1.   The institute shall have the following powers and duties:

(a)  to develop and promote scientific investigations into the
cause, prevention, methods of treatment, and cure of the acquired
diseases of immunosuppression;

(b)  to develop and promote programs of professional education
and training and improvements in instrumentation as necessary
adjuncts to such scientific investigations;

(c)  to develop and maintain a clearing house within the depart
ment for information collected on acquired immune deficiency syn
drome, including a catalogue of the existing medical literature
and the results of existing epidemiological studies;

(d)  to develop and promote an outreach campaign directed toward
targeted high risk populations to provide coordinated information
regarding the treatment and counseling programs and sources of
financial assistance available; and

(e)  to promote the availability of supportive services for
affected persons.

2.   Personal data in any investigations, reports and information
relating thereto shall be kept confidential and be afforded all
of the protections provided by the provisions of paragraph (j) of
subdivision one of section two hundred six of the public health
law.  The institute may, however, from time to time publish
analyses of such scientific investigations in such a manner as to
assure that the identities of the individuals concerned cannot be
ascertained.



 2777.  Research council

1.   There shall be established within the institute a research
council composed of seven members to be appointed by the commis
sioner. The members shall be representative of recognized centers
engaged in the scientific investigation of acquired
immunosuppressive diseases.

2.   The research council shall be responsible for making recom
mendations to the institute for the purpose of carrying out the
provisions of paragraphs (a) and (b) of subdivision one of
section twenty-seven hundred seventy-six of this article.

3.   The council shall meet at least four times a year.  Special
meetings may be called by the chairman, and shall be called by
him at the request of the commissioner.

4.   The members of the council shall receive no compensation for
their services, but shall be allowed their actual and necessary
expenses incurred in the performance of their duties hereunder.



ARTICLE 27-THE ACQUIRED IMMUNE DEFICIENCY SYNDROME INSTITUTE

 Z778.  Advisory council

1.   There shall be established within the institute an advisory
council composed of seventeen members who shall be appointed in
the following manner: three shall be appointed by the temporary
president of the senate and one by the minority leader of the
senate; three shall be appointed by the speaker of the assembly
and one by the minority leader of the assembly; nine shall be
appointed by the governor.  The governor shall designate the
chairman of the advisory council.  The members of the council
shall be representative of the public, educational and medical
institutions, local health departments and nonprofit
organizations, including organizations providing services to high
risk populations.



 2778.  Advisory council

1.   There shall be established within the institute an advisory
council composed of thirteen members who shall be appointed in
the following manner: two shall be appointed by the temporary
president of the senate and one by the minority leader of the
senate; two shall be appointed by the speaker of the assembly and
one by the minority leader of the assembly; seven shall be
appointed by the governor.  The governor shall designate the
chairman of the advisory council. The members of the council
shall be representative of the public, educational and medical
institutions, local health departments and nonprofit
organizations, including organizations providing services to high
risk populations.

2.   The advisory council shall be responsible for advising the
commissioner with respect to the implementation of this article
and shall make recommendations to the institute for the purpose
of carrying out the provisions of paragraphs (c), (d) and (e) of
subdivision one of section twenty-seven hundred seventy-six
hereof.

3.   The council shall meet at least four times a year.  Special
meetings may be called by the chairman, and shall be called by
him at the request of the commissioner.

4.   The members of the council shall receive no compensation for
their services, but shall be allowed their actual and necessary
expenses incurred in the performance of their duties hereunder.



 2779.  Reports by the commissioner

The commissioner shall make a first preliminary report to the
governor and the legislature of its findings, conclusions, and
recommendations not later than December first, nineteen hundred
eighty-three, a second preliminary report of its findings,
conclusions and recommendations not later than March first,
nineteen hundred eighty-four and a final report of its findings,
conclusions and recommendations not later than March first,
nineteen hundred eighty-five, and shall submit with its reports
such legislative proposals as it deems necessary to implement its
recommendations.



 2805-d.  Limitation of medical, dental or podiatric malpractice
action based on Jack of informed consent

1.   Lack of informed consent means the failure of the person
providing the professional treatment or diagnosis to disclose to
the patient such alternatives thereto and the reasonably
foreseeable risks and benefits involved as a reasonable medical,
dental or podiatric practitioner under similar circumstances
would have disclosed, in a manner permitting the patient to make
a knowledgeable evaluation.

2.   The right of action to recover for medical, dental or
podiatric malpractice based on a lack of informed consent is
limited to those cases involving either (a) nonemergency
treatment, procedure or surgery, or (b) a diagnostic procedure
which involved invasion or disruption of the integrity of the
body.

3.   For a cause of action therefor it must also he established
that a reasonably prudent person in the patient's position would
not have undergone the treatment or diagnosis if he had been
fully informed and that the lack of informed consent is a
proximate cause of the injury or condition for which recovery is
sought.

4.   It shall be a defense to any action for medical, dental or
podiatric malpractice based upon an alleged failure to obtain
such an informed consent that:

(a)  the risk not disclosed is too commonly known to warrant
disclosure; or

(b) the patient assured the medical, dental or podiatric
practitioner he would undergo the treatment, procedure or
diagnosis regardless of the risk involved, or the patient assured
the medical, dental or podiatric practitioner that he did not
want to be informed of the matters to which he would be entitled
to be informed; or

(c)  consent by or on behalf of the patient was not reasonably
possible; or

(d)  the medical, dental or podiatric practitioner, after
considering all of the attendant facts and circumstances, used
reasonable discretion as to the manner and extent to which such
alternatives or risks were disclosed to the patient because he
reasonably believed that the manner and extent of such disclosure
could reasonably be expected to adversely and substantially
affect the patient's condition.



ARTICLE 27-F-HIV AND AIDS RELATED INFORMATION

 2780.  Definitions

As used in this article, the following terms shall have the
following meanings:

1.   "AIDS" means 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.   "Capacity to consent" means an individual's ability,
determined with-out 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.

6.   "Protected individual" means a person who is the subject of
an HIV related test or who has been diagnosed as having HIV
infection, AIDS or HIV related illness.

7.   "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.

8.   "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 this chapter 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
articles twelve and twelve-A of the executive law; parole
services, provided pursuant to article twelve-B of the executive
law; correctional services, provided pursuant to the correction
law; detention and rehabilitative services provided pursuant to
article nineteen-G of the executive law; and the activities of
the health care worker HIV/HBV advisory panel pursuant to article
twenty-seven--DD of this chapter.

9.   "Release of confidential HIV related information" means a
written authorization for disclosure of confidential HIV related
information which is signed by the protected individual, or if
the protected individual lacks capacity to consent, a person
authorized pursuant to law to consent to health care for the
individual. Such release shall be dated and shall specify to whom
disclosure is authorized, the purpose for such disclosure and the
time period during which the release is to be effective. A
general authorization for the release of medical or other
information shall not be construed as a release of confidential
HIV related information, unless such authorization specifically
indicates its dual purpose as a general authorization and an
authorization for the release of confidential HIV related
information and complies with the requirements of this
subdivision.

10.  "Contact" means an identified spouse or sex partner of the
protected individual or a person identified as having shared
hypodermic needles or syringes with the protected individual.

11.  "Person" includes any natural person, partnership,
association, joint venture, trust, public or private corporation,
or state or local government agency.

12.  "Health facility" means a hospital as defined in section two
thousand eight hundred one of this chapter, blood bank, blood
center, sperm bank, organ or tissue bank, clinical laboratory, or
facility providing care or treatment to persons with a mental
disability as defined in article one of the mental hygiene law.

13.  "Health care provider" means any physician, nurse, provider
of services for the mentally disabled as defined in article one
of the mental hygiene law, or other person involved in providing
medical, nursing, counseling, or other health care or mental
health service, including those associated with, or under
contract to, a health maintenance organization or medical
services plan.

14.  "Child" means any protected individual actually or
apparently under eighteen years of age.

15.  "Authorized agency" means any agency defined by section
three hundred seventy-one of the social services law and, for the
purposes of this article, shall include such corporations
incorporated or organized under the laws of the state as may be
specifically authorized by their certificates of incorporation to
receive children for the purposes of adoption or foster care.

16.  "Insurance institution" means any corporation, association,
partnership, reciprocal exchange, interinsurer, fraternal
benefits society, agent, broker or other entity including, but
not limited to, any health maintenance organization, medical
service plan, or hospital plan which: (a) is engaged in the
business of insurance; (b)provides health services coverage
plans; or (c) provides benefits under, administers, or provides
services for, an employee welfare benefit plan as defined in 29
U.S.C. 1002(1).

17.  "Insurance support organization" means any person who
regularly engages, in whole or in part, in the practice of
assembling or collecting information about natural persons for
the primary purpose of providing the information to an insurance
institution for insurance transactions, including: (a) the
furnishing of consumer reports or investigative consumer reports
to an insurance institution for use in connection with an insur
ance transaction; or (b) the collection of personal information
from insurance institutions or other insurance support
organizations for the purpose of detecting or preventing fraud,
material misrepresentation, or material nondisclosure in
connection with insurance underwriting or insurance claim
activity.  The following persons shall not be considered
"insurance support organizations" for the purposes of this
article: government institutions, insurance institutions, health
facilities and health care providers.



 2781.  HIV related testing

1.   Except as provided in section three thousand one hundred
twenty-one of the civil practice law and rules, or unless
otherwise specifically authorized or required. by a state or
federal law, no person shall order the performance of an HIV
related test without first receiving the written, informed
consent of the subject of tile test who has capacity to consent
or, when the subject lacks capacity to consent, of a person
authorized pursuant to law to consent to health care for such
individual. A physician or other person authorized pursuant to
law to order the performance of an HIV related test shall
certify, in the order for the performance of an HIV related test,
that informed consent required by this section has been received
prior to ordering such test by a laboratory or other facility.

2.   Informed consent to an HIV related test shall consist of a
statement signed by the subject of the test who has capacity to
consent or, when the subject lacks capacity to consent, by a
person authorized pursuant to law to consent to health care for
the subject which includes at least the following:

(a)  an explanation of the test, including its purpose, the
meaning of its results, and the benefits of early diagnosis and
medical intervention; and

(b)  an explanation of the procedures to be followed, including
that the test is voluntary, that consent may be withdrawn at any
time, and a statement advising the subject that anonymous testing
is available; and

(c)  an explanation of the confidentiality protections afforded
confidential HIV related information under this article,
including the circumstances under which and classes of persons to
whom disclosure of such information may be required, authorized
or permitted under this article or in accordance with other
provisions of law or regulation.

3.   Prior to the execution of a written informed consent, a
person ordering the performance of an HIV related test shall
provide to the subject of an HIV related test or, If the subject
lacks capacity to consent, to a person authorized pursuant to law
to consent to health care for the subject, an explanation of the
nature of AIDS and HIV related illness, information about
discrimination problems that disclosure of the test result could
cause and legal protections against such discrimination, and
information about behavior known to pose risks for transmission
and contraction of HIV infection.

4.   A person authorized pursuant to law to order the performance
of an HIV related test shall provide to the person seeking such
test an opportunity to remain anonymous and to provide written,
informed consent through use of a coded system with no linking of
individual identity to the test request or results.  A health
care provider who is not authorized by the commissioner to
provide HIV related tests on an anonymous basis shall refer a
person who requests an anonymous test to a test site which does
provide anonymous testing.  The provisions of this subdivision
shall not apply to a health care provider ordering the
performance of an HIV related test on an individual proposed for
insurance coverage.

5.   At the time of communicating the test result to the subject
of the test, a person ordering the performance of an HIV related
test shall provide the subject of the test or, if the subject
lacks capacity to consent, the person authorized pursuant to law
to consent to health care for the subject with counseling or
referrals for counseling: (a) for coping with the emotional
consequences of learning the result; (b) regarding the discrimi
nation problems that disclosure of the result could cause; (c)
for behavior change to prevent transmission or contraction of HIV
infection; (d) to inform such person of available medical
treatments; and (e) regarding the test subject's need to notify
his or her contacts.

6.   The provisions of this section shall not apply to the
performance of an HIV related test

(a)  by a health care provider or health facility in relation to
the procuring, processing, distributing or use of a human body or
a 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 individuals
provided, however, that where the test results are communicated
to the subject, post-test counseling, as described in subdivision
five of this section, shall nonetheless be required; or

(b)  for the purpose of 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; or

(c)  in a deceased person, when such test is conducted to
determine the cause of death or for epidemiological purposes.



 2782.  Confidentiality and disclosure

1.   No person who obtains confidential HIV related information
in the course of providing any health or social service or
pursuant to a release of confidential HIV related information may
disclose or be compelled to disclose such information, except to
the following:

(a)  the protected individual or, when the protected individual
lacks capacity to consent, a person authorized pursuant to law to
consent to health care for the individual;

(b)  any person to whom disclosure is authorized pursuant to a
release of confidential HIV related information;

(c)  an agent or employee of a health facility or health care
provider if (1) the agent or employee is permitted to access
medical records, (2) the health facility or health care provider
itself is authorized to obtain the HIV related information, and
(3) the agent or employee provides health care to the protected
individual, or maintains or processes medical records for billing
or reimbursement;

(d)  a health care provider or health facility when knowledge of
the HIV related information is necessary to provide appropriate
care or treatment to the protected individual or a child of the
individual;

(e)  a health facility or health care provider, in relation to
the procurement, processing, distributing or use of a human body
or a human body part, including organs, tissues, eyes, bones,
arteries, blood, semen, or other body fluids, for use in medical
education, research, therapy, or for transplantation to
individuals;

(f)  health facility staff committees or accreditation or
oversight review organizations authorized to access medical
records; provided that such committees or organizations may only
disclose confidential HIV related information: (1) back to the
facility or provider of a health or social service; (2) to carry
out the monitoring, evaluation, or service review. for which it
was obtained; or (3) to a federal state or local government
agency for the purposes of and subject to the conditions provided
in subdivision six of this section;

(g)  a federal, state, county or local health officer when such
disclosure is mandated by federal or state law;

(h)  an authorized agency in connection with foster care or
adoption of a child. Such agency shall be authorized to
redisclose such information only pursuant to this article or in
accordance with the provisions of section three hundred seventy-
three-a of the social services law;

(i)  third party reimbursers or their agents to the extent
necessary to reimburse health care providers for health services;
provided that, where necessary, an otherwise appropriate
authorization for such disclosure has been secured by the
provider;

(j)  an insurance institution, for other than the purpose set
forth in paragraph (i) of this subdivision, provided the
insurance institution secures a dated and written authorization
that indicates that health care providers, health facilities,
insurance institutions, and other persons are authorized to
disclose information about the protected individual, the nature
of the information to be disclosed, the purposes for which the
information is to be disclosed and which is signed by: (1) the
protected individual; (2) if the protected individual lacks the
capacity to consent, such other person authorized pursuant to law
to- consent for such individual; or (3) if the protected
individual is deceased, the beneficiary or claimant for benefits
under an insurance policy, a health services plan, or an employee
welfare benefit plan as defined in 29 U.S.C. 1002(1), covering
such protected individual;

(k)  any person to whom disclosure is ordered by a court of
competent jurisdiction pursuant to section twenty-seven hundred
eighty-five of this article;

(1)  an employee or agent of the division of parole, in
accordance with paragraph (a) of subdivision two of section
twenty-seven hundred eighty-six of this article, to the extent
the employee or agent is authorized to access records containing
such information in order to, carry out the division's functions,
powers and duties with respect to the protected individual,
pursuant to section two hundred fifty-nine-a of the executive
law;

(m)  an employee or agent of the division of probation and
correctional alternatives or any local probation department, in
accordance with paragraph (a) of subdivision two of section
twenty-seven hundred eighty-six of this article, to the extent
the employee or agent is authorized to access records containing
such information in order to carry out the division's or
department's functions, powers and duties with respect to the
protected individual, pursuant to articles twelve and twelve-A of
the executive law;

(n)  a medical director of a local correctional facility as
defined in section forty of the correction law, in accordance
with paragraph (a) of subdivision two of section twenty-seven
hundred eighty-six of this article, to the extent the medical
director is authorized to access records containing such infor
mation in order to carry out his or her functions, powers and
duties with respect to the protected individual; or

(o)  an employee or agent of the commission of correction, in
accordance with paragraph (a) of subdivision two of section
twenty-seven hundred eighty-six of this article, to the extent
the employee or agent is authorized to access records containing
such information in order to carry out the commission's
functions, powers and duties with respect to the protected
individual, pursuant to article three of the correction law.

(p)  a law guardian, appointed to represent a minor pursuant to
the social services law or the family court act, with respect to
confidential HIV related information relating to the minor and
for the purpose of representing the minor. If the minor has the
capacity to consent, the law guardian may, not redisclose
confidential HIV related information without the minor's
permission. If the minor lacks capacity to consent, the law
guardian may redisclose confidential HIV related information for
the sole purpose of representing the minor.  This paragraph shall
not limit a law guardian's ability to seek relief under section
twenty-seven hundred eighty-five of this chapter.

2.   A state, county or local health officer may disclose
confidential HIV related information when:

(a)  disclosure is specifically authorized or required by federal
or state law; or

(b)  disclosure is made pursuant to a release of confidential HIV
related information; or

(c)  disclosure is requested by a physician pursuant to
subdivision four of this section; or

(d)  disclosure is authorized by court order pursuant to the
provisions of section twenty-seven hundred eighty-five of this
article.

3.   No person to whom confidential HIV related information has
been disclosed pursuant to this article shall disclose the
information to another person except as authorized by this
article, provided, however, that the provisions of this
subdivision shall not apply:

(a)  to the protected individual; or

(b)  to a natural person who is authorized pursuant to law to
consent to health care for the protected individual; or

(c)  to a protected individual's foster parent as defined in
section three hundred seventy-one of the social services law and
subject to regulations promulgated pursuant to paragraph (a) of
subdivision two of section twenty-seven hundred eighty-six of
this article, for the purpose of providing care, treatment or
supervision of the protected individual; or

(d)  a prospective adoptive parent as specified in section three
hundred seventy-three-a of the social services law and subject to
regulations promulgated pursuant to paragraph (a) of subdivision
two of section twenty-seven hundred eighty-six of this article
with whom a child has been placed for adoption.

4.   (a) A physician may disclose confidential HIV related
information wider the following conditions:

(1)  disclosure is made to a contact or to a public health
officer for the purpose of making the disclosure to said contact;
and

(2)  the physician reasonably believes disclosure is medically
appropriate and there is a significant risk of infection to the
contact; and

(3)  the physician has counseled the protected individual
regarding the need to notify the contact, and the physician
reasonably believes the protected individual will not inform the
contact; and

(4)  the physician has informed the protected individual of his
or her intent to make such disclosure to a contact and has given
the protected individual the opportunity to express a preference
as to whether disclosure should be made by the physician directly
or to a public health officer for the purpose of said disclosure.
If the protected individual expresses a preference for disclosure
by a public health officer or by the physician, the physician
shall honor such preference.

(b)  When making such disclosures to the contact, the physician
or public health officer shall provide or make referrals for the
provision of the appropriate medical advice and counseling for
coping with the emotional consequences of learning the
information and for changing behavior to prevent transmission or
contraction of HIV infection.  The physician or public health
officer shall not disclose the identity of the protected individu
al or the identity of any other contact. A physician or public
health officer making a notification pursuant to this subdivision
shall make such disclosure in person, except where circumstances
reasonably prevent doing so.

(c)  A physician or public health officer shall have no
obligation to identify or locate any contact.

(d)  A physician may, upon the consent of a parent or guardian,
disclose confidential HIV related information to a state, county,
or local health officer for the purpose of reviewing the medical
history of a child to determine the fitness of the child to
attend school.

(e)  A physician may disclose confidential HIV related
information pertaining to a protected individual to a person
(known to the physician) authorized pursuant to law to consent to
health care for a protected individual when the physician
reasonably believes that: (1) disclosure is medically necessary
in order to provide timely care and treatment for the protected
individual; and (2) after appropriate counseling as to the need
for such disclosure, the protected individual will not inform a
person authorized by law to consent to health care;  provided,
however, that the physician shall not make such disclosure if, in
the judgment of the physician: (A) the disclosure would not be in
the best interest of the protected individual; or (B) the
protected individual is authorized pursuant to law to consent to
such care and treatment. Any decision or action by a physician
under this paragraph, and the basis therefor, shall be recorded
in the protected individual's medical record.

5.   (a) whenever disclosure of confidential HIV related
information is made pursuant to this article, except for
disclosures made pursuant to paragraph (a) of subdivision one of
this section or paragraph (a) or (e) of subdivision four of this
section, such disclosure shall be accompanied or followed by a
statement in writing which includes the following or substan
tially 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." An oral
disclosure shall be accompanied or followed by such a notice
within ten days.

(b)  Except for disclosures made pursuant to paragraph (c) of
subdivision one of this section, or to persons reviewing
information or records in the ordinary course of ensuring that a
health facility is in compliance with applicable quality of care
standards or any other authorized program evaluation, program
monitoring or service review, or to governmental agents requiring
information necessary for payments to be made on behalf of
patients or clients pursuant to contract or in accordance to law,
a notation of all such disclosures shall be placed in the medical
record of a protected individual, who shall be informed of such
disclosures upon request; provided, however, that for disclosures
made to insurance institutions such a notation need only be
entered at the time the disclosure is first made.

6.   (a) The provisions of this subdivision shall apply where a
provider of a health or social service possesses confidential HIV
related information relating to individuals who are recipients of
the service, and a federal, state or local government agency
supervises or monitors the provider or administers the program
under which the service is provided.

(b)  Confidential HIV related information relating to a recipient
of such service may be disclosed in accordance with regulations
promulgated pursuant to paragraph (a) of subdivision two of
section twenty-seven hundred eighty-six of this article to an
authorized employee or agent of such provider or government
agency, when reasonably necessary for such supervision,
monitoring, administration, or provision of such service.  The
term "authorized employee or agent", as used in this subdivision
shall only include any employee or agent who would, in the
ordinary course of business of the provider or government agency,
have access to records relating to the care of, treatment of, or
provision of a health or social service to the protected
individual.

7.   Nothing in this section shall limit a person's or agency's
responsibility or authority to report, investigate, or
redisclose, child protective and adult protective services
information in accordance with title six of article six and
titles one and two of article nine-B of the social services law,
or to provide or monitor the provision of child and adult
protective or preventive services.

8.   Confidential HIV related information shall be recorded in
the medical record of the protected individual. The provisions of
this section shall not prohibit the listing of acquired immune
deficiency syndrome, HIV related illness or HIV infection in a
certificate of death, autopsy report or related documents
prepared pursuant to article forty-one of this chapter or other
applicable laws, ordinances, rules or regulations relating to the
documentation of cause of death, nor shall this section be
construed to modify any laws, ordinances, rules or regulations
relative to access to death certificates, autopsy reports or such
other related documents. Under no circumstances shall
confidential HIV related information be disclosable pursuant to
article six of the public officers law.

9.   Confidential HIV related information shall be disclosed upon
the request of the health care worker HIV/HBV advisory panel,
established pursuant to article twenty-seven-DD of this chapter,
to the panel or its designee only when reasonably necessary for
the evaluation of a worker who has voluntarily sought the panel's
review.



 2783.  Penalties; immunities

1.   Any person who shall:

(a)  perform, or permit or procure the performance of, an HIV
related test in violation of section twenty-seven hundred eighty-
one of this article; or

(b)  disclose, or compel another person to disclose, or procure
the disclosure of, confidential HIV related information in
violation of section twenty-seven hundred eighty-two of this
article; shall be subject to a civil penalty not to exceed five
thousand dollars for each occurrence. Such penalty may be
recovered in the same manner as the penalty provided in section
twelve of this chapter.

2.   Any person who willfully commits an act enumerated in
subdivision one of this section shall be guilty of a misdemeanor
and subject to the penalties provided in section twelve-b of this
chapter.

3.   There shall be no criminal sanction or civil liability on
the part of, and no cause of action for damages shall arise
against any physician or his or her employer, or health facility
or health care provider with which the physician is associated,
or public health officer, solely on account of:

(a)  the failure to disclose confidential HIV related information
to a contact or person authorized pursuant to law to consent to
health care for a protected individual; or

(b)  the disclosure of confidential HIV related information to a
contact or person authorized pursuant to law to consent to health
care for a protected individual, when carried out in good faith
and without malice, and in compliance with this article; or

(c)  the disclosure of confidential HIV related information to
any person, agency, or officer authorized to receive such
information, when carried out in good faith and without malice,
and in compliance with the provisions of this article.

4.   Any cause of action to recover damages based on a failure to
provide information, explanations, or counseling prior to the
execution of a written informed consent, or based on a lack of
informed consent in the ordering or performance of an HIV related
test in violation of this article shall be governed by the
provisions of section two thousand eight hundred five-d of this
chapter.



 2784.  Applicability to insurance institutions and insurance
support organizations

Except for disclosure to third party reimbursers and insurance
institutions pursuant to paragraphs (i) and (j) of subdivision
one of section twenty-seven hundred eighty-two of this article
and except for disclosures pursuant to section twenty-seven
hundred eighty-five of this article, the provisions of this
article shall not apply to insurance institutions and insurance
support organizations, except that health care providers
associated with or under contract to a health maintenance
organization or other medical services plan shall be subject to
the provisions of this article.