Section 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 the 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  the test is voluntary, that consent may be withdrawn at any time, and  a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 discrimination 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) on a deceased person, when such test is conducted to determine the
  cause of death or for epidemiological purposes.
    (d)  conducted  pursuant  to  section  twenty-five  hundred-f  of this
  chapter.
    7. In the event that an HIV related test is ordered by a physician  or
  certified nurse practitioner pursuant to the provisions of the education
  law  providing  for non-patient specific regimens, then for the purposes
  of this section the individual administering the test shall be deemed to
  be the individual ordering the test.