New York State Laws -- Yet Another Q&A
In January, Body Positive reported in detail on important new legislation affecting New York State residents who are HIV-positive. Last month, we answered some of the more frequently asked questions about the new laws, but couldn't say exactly how they will work because the regulations under which they will be implemented had not yet been released.
Well, now they have been, and many in the HIV/AIDS community have serious concerns. The New York City Gay and Lesbian Anti-Violence Project, for example, is worried about the draft regs' lack of specificity about domestic violence.
The proposed regulations were issued on March 17, beginning a 45-day period during which the public can comment on them and recommend changes. AIDS service and advocacy organizations are preparing comments, but individual voices are needed as well if we are to prevent a bad law from becoming a worse reality. Comments must be received no later than May 3, and should be submitted in writing to:
Mr. William R. Johnson
New York State Department of Health
Copies of the draft regulations can be obtained from the same place, and AIDS organizations are sure to have analyses and critiques available shortly. Meanwhile, Body Positive will continue to pass on information as it becomes available. The proposed regs were published just as this issue was going to press, but our friends at the New York AIDS Coalition had already prepared a question-and-answer information piece and they have allowed us to share it with our readers.
Who Gets Reported and WhenUnder the proposed regulations, all HIV-infected individuals will be reported to the state for surveillance purposes, with the exception of those individuals who test anonymously and have not yet sought medical treatment. The law states that individuals who are diagnosed with HIV, an HIV-related illness, or AIDS are subject to being reported. The new regs define HIV-related illness as any clinical illness that may result from or be associated with HIV infection. They also allow for an indication of HIV infection such as a viral load test or a CD4 cell count of less than 500 to trigger HIV reporting.
Who Is Required to Report?Medical Providers: The proposed regulations require that physicians, nurse practitioners, nurse midwives, and physician assistants report the names and addresses of infected individuals and of their known contacts to the state Department of Health. Reporting is required as soon as possible after post-test counseling, but no later than 21 days after the provider's receipt of a confirmation of an HIV test result or diagnosis.
Pathologists and Coroners: Pathologists and coroners must also report to the state within 21 days after receiving a positive test result or determination.
Laboratories: Laboratories must report on confirmed initial HIV-antibody tests, HIV nucleic acid (RNA or DNA) detection tests, and CD4 lymphocyte counts under 500 on a schedule to be specified by the commissioner. Laboratory reports must also include the names and addresses of index patients and contacts. Anonymous test results are excluded.
When Will Contact Tracing Occur?The state will make available to New York City, state, or county partner notification programs secured information that will include the names and addresses of infected individuals and their contacts. The law provides that contact notification can occur in cases that "merit" it in order to protect the public health. The state proposes that localities use the following guidelines to determine which cases "merit" contact notification:
(1) known contacts, including spouses; and
(2) newly diagnosed HIV infections.However, the proposed regs allow for contact tracing in the following three instances:
(b) contacts identified by physicians, physician assistants, nurse midwives, etc. in the course of their practice; and
(c) when an occupational exposure occurs to staff, employees, or volunteers in a medical or emergency setting (see below).
How Will the State Get the Names of an HIV-Positive Person's Contacts?Medical providers are required to report the names of spouses and known contacts. They or a public health representative (PHR) will also ask individuals to provide the names and addresses of their contacts. The public health representative is also permitted under the proposed regs to follow up by interviewing individuals to solicit this information. In these circumstances, the PHR must confirm that post-test counseling took place, ask for voluntary cooperation about the identity and location of known contacts, conduct a screening or confirm that one has occurred for domestic violence (see below), and if necessary provide referrals prior to notification of contacts.
Who Is a Contact?A contact is anyone who is disclosed by the infected individual, a known sex or needle-sharing partner, a spouse (including an ex-spouse who was married to the infected individual within the preceding ten years), or an employee or volunteer in a medical or emergency situation who was exposed to the virus and where there was a significant risk of infection.
How Will Contact Resulting from Occupational Exposure Be Handled?The new law broadened the definition of "contact" to include people who have been exposed to the virus. The proposed regs determines those individuals to be the following:
(1) a staff member, employee or volunteer working in a medical or dental office; or
(2) a staff member, employee, or volunteer working in a facility regulated by the Department of Health, Office of Mental Health and Developmental Disabilities, Office of Children and Families, Office of Alcohol and Substance Abuse Services, or Department of Correctional Services; or
(3) an emergency response employee, EMT, firefighter, or law enforcement or corrections officer.
In order to have such information disclosed, an occupational exposure constituting risk of transmission must have occurred on the job and an incident report must have been filed. Risk of transmission includes exposure to "blood, semen or other listed body substance which has come in contact with mucus membranes, non-intact skin or the vascular system of another." Disclosure can be made to this contact if the information is necessary for immediate treatment decisions and the exposed person is either HIV-negative or unknown (if the exposed individual's status is unknown, he or she must consent to an HIV test).
How Will Contacts Be Notified?Contacts will be notified in person whenever possible. Again, the local or county Department of Health is responsible for receiving the reports, determining which "merit" contact tracing, and then informing contacts that they have been exposed. They must also provide the contact with access to counseling and testing, as well as to other necessary information regarding the nature of HIV infection, modes of transmission, risk-reduction methods, and referrals.
Can Someone's Doctor Inform a Contact?Yes, but the doctor is not obligated to do so. However, if a doctor notifies a contact at the request of an individual, the doctor must inform the state that she or he plans to do so and must report to the state or local Department of Health the results (success or failure) of the notification within sixty days of the initial report.
What if Someone Wants to Remain Anonymous?As soon as an individual chooses to seek medical care, he or she will be required to undergo a confirmatory test that will result in his or her name and address being reported to the state Department of Health.
What Will People Be Told During Pre- and Post-Test Counseling?Pre- and post-test counseling must include that HIV reporting is required by law and that individuals who test positive will be asked to cooperate in disclosing contact information. Post-test counseling for those who test positive will also include that contacts should be notified to prevent transmission and to allow exposed persons early access to HIV counseling, testing, and healthcare; domestic violence issues of concern; that known contacts will be reported; and that persons who are reported will also be requested to "cooperate in contact notification efforts."
What About Special Situations for Adolescents or Violence in Relationships?The proposed regs make no mention of special concerns affecting adolescents who test positive or may be contacts. The proposed regs do state that the Department of Health will establish a screening mechanism and protocols to follow in the event that the risk of domestic violence exists. They also specify that no notification can occur until "referrals are made," but allows for notification if the PHR is "satisfied in his/her professional judgment that reasonable arrangements and referrals to address the safety of the affected persons have been made if and when the notification is to proceed."
What About an Individual's Confidentiality?Reports and additional information are supposed to be kept confidential and used only for purposes of contact tracing. Information cannot be disclosed for use in court proceedings, except where already provided by law.
Stacey Millman is Director of State Governmental Affairs for the New York AIDS Coalition, a statewide organization of more than 200 community-based service providers, including Body Positive, united in the fight against HIV and AIDS. For more information on this law and other policy issues, you may call NYAC in Albany at (518) 426-2396 or write to New York AIDS Coalition, 119 Washington Avenue, Albany, NY 12210.
This article was provided by Body Positive. It is a part of the publication Body Positive.