New York Codes, Rules and Regulations (NYCRR)

Title 9 Part 7064

Executive Department

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9 NYCRR 7064.1 - Policy

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Recognizing that maximum confidentiality protection for information related to human immunodeficiency virus (HIV) infection and acquired immune deficiency syndrome (AIDS) is an essential public health measure and that HIV infection and AIDS issues are of particular concern to correctional professionals, and in order to retain the full trust and confidence of persons at risk, each correctional facility shall ensure that HIV-related information is not improperly disclosed, shall establish clear and certain rules for the disclosure of such information, and provide safeguards to prevent discrimination, abuse, or other adverse actions directed toward protected individuals.

9 NYCRR 7064.2 - Definitions

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As used in this Part, the following definitions shall apply to the terms listed below:

(a)HIV infection means infection with the human immoundeficiency virus or any other related virus identified as a probable causative agent of AIDS.
(b)HIV-related illness means any clinical illness that may result from or be associated with HIV infection.
(c)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 HIV infection.
(d)Capacity to consent means an individual's ability, determined without regard to such individual's age, to understand and appreciate the nature and consequences of a proposed health care service, treatment or procedure, and to make an informed decision concerning such service, treatment or procedure.
(e)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.
(f)Confidential HIV-related information means any information, in the possession of a person who provides 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.
(g)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; public assistance, employment-related services, housing services, foster care, shelter, protective services, day care, or preventive services; services for the mentally disabled, probation services, parole services, correctional services; and detention and rehabilitative services, all as defined in section 2780(8) of the Public Health Law, and including local correctional facilities.
(h)Health facility means a hospital as defined in section 2801 of the Public Health Law, blood bank, blood center, sperm bank, organ or tissue bank, clinical laboratory, or facility providing care or treatment to persons with a mental disability.
(i)Health care provider means any physician, nurse, provider of services for the mentally disabled 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; including local correctional facility medical service providers.
(j)Contact means an identified spouse or sex partner of the protected individual or a person identified as having been exposed to infected blood or semen from the protected individual.
(k)Person includes any natural persons, partnership, association, joint venture, trust, public or private corporation or State or local government agency.

9 NYCRR 7064.3 - Facility policies and procedures

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(a)The medical director of each local correctional facility in conjunction with the chief administrative officer shall develop and implement written policies and procedures consistent with the requirements of this Part and article 27- of the Public Health Law.
(b)Such policies and procedures shall include, but are not limited to, the following:
(1)safeguards to prevent discrimination, abuse, or other adverse actions against protected individuals;
(2)provisions establishing a schedule for training all facility staff regarding the requirements of Public Health Law, article 27-F and this Part;
(3)provisions for safeguarding the confidentiality of all medical records and information concerning HIV testing or HIV-related information as required by Public Health Law, article 27-F and this Part;
(4)provisions specifically setting forth those persons having access to HIV testing and HIV-related information when such access is necessary for appropriate medical or psychiatric diagnosis or treatment;
(5)provisions for handling requests by other parties for confidential HIV-related information; and
(6)provisions to protect individuals in contact with protected individuals when such contact creates a significant risk of contracting or transmitting HIV infection through the exchange of body fluids, as provided for in section 7064.4 of this Part.

9 NYCRR 7064.4 - Significant risk of contracting or transmitting HIV infection

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(a)The three factors necessary to create a significant risk of contracting or transmitting HIV infection are:
(1)the presence of a significant risk body substance;
(2)a circumstance which constitutes significant risk for transmitting or contracting HIV infection; and
(3)the presence of an infectious source and a noninfected person.
(b)Significant risk body substances are blood, semen, vaginal secretions, breast milk, tissue and the following body fluids: cerebrospinal, amniotic, peritoneal, synovial, pericardial, and pleural.
(c)Circumstances which constitute “significant risk of transmitting or contracting HIV infection” are:
(1)sexual intercourse (vaginal, anal, oral) which exposes a noninfected individual to blood, semen or vaginal secretions of an infected individual;
(2)sharing of needles and other paraphernalia used for preparing and injecting drugs between infected and noninfected individuals;
(3)the gestation, birthing or breast feeding of an infant when the mother is infected with HIV;
(4)transfusion or transplantation of blood, organs, or other tissues from an infected individual to an uninfected individual, providing such blood, organs or other tissues have not tested negatively for antibody or antigen and have not been rendered noninfective by heat or chemical treatment; and
(5)other circumstances not identified in paragraphs (1)-(4) of this subdivision during which a significant risk body substance (other than breast milk) of an infected individual contacts mucous membranes (e.g., eyes, nose, mouth), nonintact skin (e.g., open wound, skin with a dermatitis condition, abraded areas) or the vascular system of a noninfected person. Such circumstances include, but are not limited to needlestick or puncture wound injuries and direct saturation or permeation of these body surfaces by the infectious body substance.
(d)Circumstances that involve “significant risk” shall not include:
(1)exposure to urine, feces, sputum, nasal secretions, saliva, sweat, tears or vomitus that does not contain blood that is visible to the naked eye;
(2)human bites where there is no direct blood-to-blood, or blood-to-mucous membrane contact;
(3)exposure of intact skin-to-blood or any other body substance; or
(4)occupational settings where individuals use scientifically accepted barrier techniques and preventive practices in circumstances which would otherwise pose a significant risk.

9 NYCRR 7064.5 - Applicability

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These regulations apply to all administrators, personnel, employees, consultants, independent contractors, and service providers whether paid or volunteer, of local correctional facilities; to persons who order an HIV-related test; to persons who receive confidential HIV-related information in the course of providing any health or social service or who receive confidential HIV-related information pursuant to a release; and to providers and facilities providing health care. These regulations do not apply to information which is received by the Commissioner of Health under Title 10 NYCRR Subpart 24-1 and protected from disclosure pursuant to Public Health Law, section 206(1)(j).

9 NYCRR 7064.6 - HIV-related testing

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(a)Except as noted in paragraph (3) of this subdivision, no physician or other person authorized pursuant to law may order an HIV-related test without obtaining written informed consent.
(1)Informed consent shall consist of providing to the person to be tested or, if such person lacks capacity to consent, to the person lawfully authorized to consent to health care for such person. In situations in which a person other than the test subject consents to the test, pretest counseling shall also be provided to the subject to the extent that the person ordering the test deems that the test subject will benefit from counseling. Pretest counseling shall include:
(i)explanations regarding the nature of HIV infection and HIV-related illness, an explanation of the HIV-related test including a description of the procedure to be followed, meaning of the test results, and the benefits of taking the test, including early diagnosis and medical intervention;
(ii)information regarding discrimination problems which might occur as a result of unauthorized disclosure of HIV-related information and legal protections prohibiting such disclosures;
(iii)information on preventing exposure or transmission of HIV infection, including behavior which poses a risk of HIV transmission; and
(iv)an explanation that the test is voluntary, that consent may be withdrawn at any time, and that anonymous testing is available, including the location and telephone numbers of anonymous test sites, and that anonymous testing is not available to persons proposed for insurance coverage.
(2)Written informed consent must be executed on a form developed by the Department of Health or on another form approved specifically by the Department of Health.
(3)Informed consent is not required in the following situations:
(i)for court-ordered testing pursuant to Civil Practice Law and Rules, section 3121;
(ii)if otherwise authorized or required by State of Federal law;
(iii)for testing related to procuring, processing, distributing or use of a human body or human body part, including organs, tissues, eyes, bones, arteries, blood, semen or other body fluids for use in medical research or therapy, or for transplantation to persons, provided that if the test results are communicated to the tested persons, post-test counseling is required;
(iv)for research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher; or
(v)for testing of a deceased to determine cause of death or for epidemiological purposes.
(b)In addition to an explanation of the test result, the person who orders the test shall be responsible for ensuring that post-test counseling or referrals as appropriate with respect to a positive or negative test result shall be provided to the person who consented to the test. In situations in which a person other than the test subject consents for the test, post-test counseling and referrals should also be provided to the test subject, to the extent the person ordering the test deems that the test subject will benefit from counseling. Such post-test counseling and referrals must include specific referral information and must address:
(1)coping emotionally with the test results;
(2)discrimination issues;
(3)information on the ability to release or revoke the release of confidential HIV-related information;
(4)information on preventing exposure to or transmission of HIV infection and the availability of medical treatment; and
(5)the need to notify contacts to prevent transmission, including information on State or county assistance in voluntary contact notification, if appropriate.
(c)A physician or other person authorized pursuant to law to order an HIV-related test shall certify on a laboratory requisition form that informed consent has been obtained. Authorized employees or agents of the New York State Department of Health or of the New York City Department of Health may order HIV-related tests and certify, as appropriate, with respect to obtaining informed consent in approved anonymous testing sites.

9 NYCRR 7064.7 - Disclosure pursuant to a release

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(a)No confidential HIV-related information shall be disclosed pursuant to a general release. Disclosure is permitted for HIV-related information pursuant to a specific release form which has been developed or approved by the New York State Department of Health. The release must be signed by the protected individual, or if the protected individual lacks capacity to consent, by a person authorized pursuant to law to consent to health care for the individual.
(b)All written disclosures of confidential HIV-related information shall be securely packaged and be accompanied by a statement prohibiting redisclosure. The statement shall include the following language or substantially 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. Disclosure of confidential HIV information that occurs as the result of a general authorization for the release of medical or other information will be a violation of the State law and may result in a fine or a jail sentence or both.”
(c)If oral disclosures are necessary, they must be accompanied or followed as soon as possible, but no later than 10 days, by the statement required by subdivision (b) of this section.
(d)The statement required by subdivisions (b) and (c) of this section is not required for release to the protected person or to his or her legal representative, for releases made by a physician or public health officer to a contact, or for releases made by a physician to a person authorized pursuant to law to consent to the health care of the protected person when the person has been counseled and the disclosure is medically necessary pursuant to Public Health Law, section 2782(4)(e). For disclosures of confidential HIV-related information from the patient's medical record to persons who are permitted access to this information pursuant to section 7064.8(a)(3), (4), (6), (7), (9) and (10) and section 7064.8(e) and (f) of this Part, it shall be sufficient for the statement required by subdivisions (b) and (c) of this section to appear in the medical record itself.

9 NYCRR 7064.8 - Confidentiality and disclosure

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(a)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:
(1)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;
(2)any person to whom disclosure is authorized pursuant to a release of confidential HIV-related information in accordance with section 7064.7(a) of this Part;
(3)any agent or employee of a health facility or health care provider if:
(i)the agent or employee is authorized to access medical records;
(ii)the health facility or health care provider itself is authorized to obtain the HIV-related information; and
(iii)the agent or employee provides health care to the protected individual, or maintains or processes medical records for billing or reimbursement.
(4)a health care provider or health facility, including a health care provider employed or health facility operated by the Department of Corrections and Community Supervision, 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;
(5)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;
(6)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:
(i)back to the facility or provider of a health or social service;
(ii)to carry out the monitoring, evaluation, or service review for which it was obtained; or
(iii)to a Federal, State or local government agency for the purposes of and subject to the conditions provided in subdivision (e) of this section;
(7)a Federal, State, county or local health officer when such disclosure is mandated by Federal or State law;
(8)authorized agencies as defined by section 371(10) of the Social Services Law, and corporations incorporated or organized to receive children for adoption or foster care, in connection with foster care or adoption of a child. Such agency shall be authorized to redisclose such information only pursuant to the provisions of article 27-F of the Public Health Law or in accordance with the provisions of section 373-A of the Social Services Law;
(9)third-party reimbursers or their agents to the extent necessary to reimburse health care providers, including health facilities, for health services, provided that an otherwise appropriate authorization for such disclosure has been secured;
(10)an insurance institution, for other than the purpose set forth in paragraph (9) 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:
(i)the protected individual;
(ii)if the protected individual lacks the capacity to consent, such other person authorized pursuant to law to consent for such individual; or
(iii)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 authorized in article 27-F of the Public Health Law;
(11)to a funeral director upon taking charge of the remains of a deceased person when such funeral director has access in the ordinary course of business to HIV-related information on the death certificate of the deceased individual as authorized by Public Health Law section 4142;
(12)any person to whom disclosure is ordered by a court of competent jurisdiction pursuant to section 2785 of the Public Health Law;
(13)an employee or agent of the Division of Parole, Division of Probation and Correctional Alternatives or local probation department, or Commission of Correction, to the extent the employee or agent is authorized to access records containing such information in order to carry out his or her agency's functions, powers, and duties with respect to the protected individual, pursuant to each agency's regulations promulgated in accordance with article 27-F of the Public Health Law;
(14)a medical director of a local correctional facility in accordance with the policies and procedures of the correctional facility; and
(15)an employee or agent of a provider of health or social services, including but not limited to the Department of Corrections and Community Supervision and local correctional facilities, when reasonably necessary to provide supervision, monitoring or administration of services and when these employees or agents have access in the ordinary course of business to records relating to the care, treatment, or provision of a health or social service, and in accordance with such provider's regulations promulgated in accordance with article 27-F of the Public Health Law. Disclosure to an employee or agent of a local correctional facility pursuant to this paragraph shall be consistent with section 601 of the Correction Law and Part 7033 of this Title and shall be authorized only when such disclosure is necessary to:
(i)enable the chief administrative officer to appropriately maintain custody and supervision of the protected person or provide for the safety and protection of the protected person or provide for the safety and protection of staff, other inmates, or the facility; and
(ii)the medical director reasonably believes that without disclosure circumstances will exist creating a significant risk of contracting or transmitting HIV infection.
(b)A State, county or local health officer may disclose confidential HIV-related information when:
(1)disclosure is specifically authorized or required by Federal or State law; or
(2)disclosure is made pursuant to a release of confidential HIV-related information; or
(3)disclosure is requested by a physician pursuant to subdivision (e) of this section; or
(4)disclosure is authorized by court order pursuant to the provisions of section 2785 of the Public Health Law.
(c)A physician may disclose the confidential HIV-related information during contact notification pursuant to section 7064.10 of this Part.
(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)Confidential HIV-related information may be disclosed to a governmental agency or to authorized employees or agents of a governmental agency pursuant to the regulations of the governmental agency when the person providing health services is regulated by the governmental agency or when the governmental agency supervises or administers the health program or a social service program and when such employees or agents have access to records in the ordinary course of business and when access is reasonably necessary for supervision, monitoring, administration or provision of services. Such authorized employees or agency may include attorneys authorized by a government agency when access occurs in the ordinary course of providing legal services and is reasonably necessary for supervision, monitoring, administration or provision of services.
(f)Confidential HIV-related information may be disclosed to authorized employees or agents of a person providing health or social services when such person is either regulated by a governmental agency or when a governmental agency administers the health or social service program, and when such employees or agents have access to records in the ordinary course of business and when access is reasonably necessary for supervision, monitoring, administration or provision of services and when such employee or agent has been authorized by law. Such authorized employees or agents may include attorneys authorized by persons providing health services when access occurs in the ordinary course of providing legal services and is reasonably necessary for supervision, monitoring, administration or provision of services.
(g)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 the 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:
(i)the disclosure would not be in the best interest of the protected individual; or
(ii)the protected individual is authorized pursuant to law to consent to such care and treatment.
(3)A physician's decision to disclose pursuant to this paragraph, and the basis for that decision, shall be recorded in the medical record.
(h)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 6 of article 6 and titles 1 and 2 of article 9-B of the Social Services Law, or to provide or monitor the provision of child and adult protective or preventive services.
(i)Confidential HIV-related information shall not be disclosed to a health care provider or health care facility if the sole purpose of disclosure is infection control when such provider or facility is regulated under Public Health Law and required to implement infection control procedures pursuant to Department of Health regulation.
(j)Confidential HIV-related information shall not be disclosed to a health care provider or health care facility if the sole purpose of disclosure is infection control precautions when such provider or facility is regulated under Public Health Law and required to implement such precautions pursuant to Department of Health regulation. This restriction shall not limit access to HIV-related information by a health care provider's infection control personnel for purposes of fulfilling their designated responsibilities.
(k)Confidential HIV-related information disclosed pursuant to this subdivision shall be securely packaged and shall contain the redisclosure statement required by section 7064.7(b) of this Part.

9 NYCRR 7064.9 - Documentation of HIV-related information and disclosures

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(a)Confidential HIV-related information shall be recorded in the medical record such that it is readily accessible to provide proper care and treatment.
(b)All disclosures of confidential HIV-related information must be noted in the record, except:
(1)only initial disclosures to insurance institutions must be noted;
(2)notation is not required for disclosure to agents or employees of health facilities or health care providers authorized under section 7064.8(a)(3) of this Part; and
(3)notation is not required for persons engaged in quality assurance, program monitoring or evaluation, nor for governmental payment agents acting pursuant to contract or law.
(c)Confidential HIV-related information may be noted in a certificate of death, autopsy report or related documents prepared pursuant to article 41 of the Public Health Law or other laws relating to documentation of cause of death.
(d)The protected person shall be informed of disclosures of HIV information upon request of the protected person.
(e)Confidential HIV-related information shall not be disclosable pursuant to Public Officers Law, article 6, the Freedom of Information Law.

9 NYCRR 7064.10 - Contact notification

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(a)A physician may disclose HIV-related information, without the protected person's consent, to a contract or to a public health officer when:
(1)the physician reasonably believes disclosure is medically appropriate and a significant risk of infection exists; and
(2)the protected person has been counseled to notify his/her contacts, has been provided a reasonable opportunity to do so, and the physician reasonably believes the protected person will not inform the contacts.
(b)The physician must inform the protected person of the physician's intent to disclose and inform the protected person that he or she may choose whether the physician or public health officer will notify the contact. The physician shall honor the protected person's choice. All notification shall be in person, except where circumstances compel otherwise.
(c)The identity of the protected person shall not be disclosed to the contact.
(d)When a public health officer is requested to notify contacts, the officer shall meet with the protected person, unless conditions prevent it, to counsel and verify information prior to any notification of such person's contacts. Local health units must provide HIV contact notification services.
(e)The person notifying the contact shall provide counseling or make referrals for counseling as appropriate. Such counseling must address coping emotionally with potential exposure to HIV, an explanation regarding the nature of HIV infection and HIV-related illness, availability of anonymous and confidential testing, information on preventing exposure or transmission of HIV infection, information regarding problems that might occur as the result of disclosure of HIV-related information, and the legal protections against such disclosures.
(f)If a protected person is now deceased and the physician reasonably believes the protected person had not informed his/her contacts and reasonably believes disclosure is medically appropriate and that a significant risk of infection exists, the physician may notify the contact or request the public health officer to notify the contact. All such notifications shall be in person, except where circumstances reasonably prevent doing so, and the identity of the deceased shall not be disclosed.
(g)A physician shall have no obligation to identify or locate any contact.

9 NYCRR 7064.11 - Penalties and immunities

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(a)Any person who shall:
(1)perform, permit, or procure the performance of an HIV-related test in violation of section 2781 of the Public Health Law; or
(2)disclose, compel another person to disclose, or procure the disclosure of confidential HIV-related information in violation of section 2782 of the Public Health Law shall be subject to a civil penalty not to exceed $5,000 for each occurrence. Such penalty may be recovered in the same manner as the penalty provided in section 12 of the Public Health Law.
(b)Any person who willfully commits an act enumerated in subdivision (a) of this section shall be guilty of a misdemeanor and subject to the penalties provided in section 12-b of the Public Health Law.

9 NYCRR 7064.12 - Approved forms; informed consent, release

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(a)Each local correctional facility shall maintain an adequate supply of forms approved by the New York State Department of Health for the purpose of informed consent relative to any HIV-related test and authorization for release of confidential HIV-related information.
(b)Such forms shall be used pursuant to the requirements of article 27-F of the Public Health Law and this Part.

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